__________*__________
Saturday, April 8, 2017
SIXTIETH DAY
[MR. SPEAKER, MR. ARMSTEAD, IN THE
CHAIR]
??????????? The House of Delegates met at 10:00
a.m., and was called to order by the Honorable Tim Armstead, Speaker.
??????????? Prayer was offered and the House was
led in recitation of the Pledge of Allegiance.
??????????? The Clerk proceeded to read the
Journal of Friday, April 7, 2017, being the first order of business, when the
further reading thereof was dispensed with and the same approved.
Committee Reports
??????????? Delegate Hanshaw, Chair of the Joint
Committee on Enrolled Bills, submitted the following report, which was
received:
??????????? Your Joint Committee on Enrolled
Bills has examined, found truly enrolled and, on the 6th day of
April, 2017, presented to His Excellency, the Governor, for his action, the
following bills, signed by the President of the Senate and the Speaker of the
House of Delegates:
Com.
Sub. for H. B. 2180, Authorizing the issuance of special ?In God We
Trust? motor vehicle registration plates,
H. B.
2188, Extending the length of time for the special Community-Based Pilot
Demonstration Project to Improve Outcomes for At-Risk Youth,
H. B.
2518, Creating a legislative rule to permit a pharmacist or pharmacy intern
to administer certain immunizations,
Com.
Sub. for H. B. 2519, Medicaid program compact,
Com.
Sub. for H. B. 2586, Relating to required minimum distribution of
retirement benefits of plans administered by the Consolidated Public Retirement
Board,
H. B.
2653, Extending the Multi State Real-Time Tracking System,
H. B.
2706, Authorizing legislative rules regarding higher education,
H. B.
2796, Relating to the West Virginia National Guard entering into contracts
and subcontracts for specialized technical services,
And,
H. B.
2856, Declaring public policy and legislative intent for improving the
marketing, quality and frequency of passenger rail service of the Cardinal
Passenger Train.
Messages
from the Senate
??????????? A
message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2129, Relating to the powers and authority
of state and local law enforcement to enforce underage drinking laws at private
clubs.
??????????? On motion of Delegate Cowles, the
House of Delegates refused to concur in the following amendment of the bill by
the Senate and requested the Senate to recede therefrom:
??????????? On page one, by striking out
everything after the enacting clause and inserting in lieu thereof the
following:
?That
?60-7-13 of the Code of West Virginia, 1931, as amended, be amended and
reenacted to read as follows:
ARTICLE 7. LICENSES TO PRIVATE CLUBS.
?60-7-13. Revocation or suspension of license;
monetary penalty; hearing; assessment of costs; establishment of enforcement
fund.
(a) Upon
a determination by the commissioner that a licensee has: (i) Violated the
provisions of article sixteen, chapter eleven, or of this chapter; (ii) acted
in such a way as would have precluded initial or renewal licensure; or (iii)
violated any rule or order promulgated by the commissioner, the commissioner
may impose any one or a combination of the following sanctions:
(1)
Revoke the licensee?s license;
(2)
Suspend the licensee?s license;
(3)
Place the licensee on probationary status for a period not to exceed twelve
months; and
(4)
Impose a monetary penalty not to exceed $1,000 for each violation where
revocation is not imposed.
(b) Any
monetary penalty assessed and collected by the commissioner shall be
transmitted to the State Treasurer for deposit into the State Treasury to the
credit of a special revenue fund designated the Alcohol Beverage Control
Enforcement Fund, which is hereby created. All moneys collected, received and
deposited in the Alcohol Beverage Control Enforcement Fund shall be kept and maintained
for expenditures by the commissioner for the purpose of enforcement of the
statutes and rules pertaining to alcoholic liquor, and shall not be treated by
the State Treasurer or State Auditor as any part of the general revenue of the
state. At the end of each fiscal year all funds in the Alcohol Beverage Control
Enforcement Fund in excess of $20,000 shall be transferred to the General
Revenue Fund.
(c) In
addition to the grounds for revocation, suspension or other sanction of a
license set forth in subsection (a) of this section, conviction of the licensee
of any offense constituting a violation of the laws of this state or of the
United States relating to alcoholic liquor, nonintoxicating beer or gambling
shall be mandatory grounds for such sanctioning of a license. Conviction of the
licensee of any violation of the laws of this state or of the United States
relating to prostitution, or the sale, possession or distribution of narcotics
or controlled substances, shall be mandatory grounds for revocation of the
licensee?s license for a period of at least one year.
(d) In
addition to the grounds for revocation, suspension or other sanction of a
license set forth in this section, the commissioner may, in his or her
discretion, revoke, suspend or otherwise sanction a licensee for failing to
alert, in a timely manner, emergency medical services or law enforcement of a
life-threatening medical emergency occurring on the premises of the licensee?s
private club.
(e) If a
life threatening medical emergency occurs on a licensee?s private premises
requiring notification under subsection (d) of this section, the licensee shall
notify the Alcohol Beverage Control Administration within forty-eight hours of
the emergency?s occurrence. The commissioner may, in his or her discretion,
revoke, suspend or otherwise sanction a licensee for failing to comply with the
48-hour notification requirement.?
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2129 ? ?A Bill to amend and reenact ?60-7-13
of the Code of West Virginia, 1931, as amended, relating to authorizing the
Commissioner of the Alcohol Beverage Control Administration to revoke, suspend
or otherwise sanction a private club licensed to sell alcohol for failing to
alert emergency medical services and law enforcement of a life-threatening
medical emergency occurring on the licensee?s premises; requiring private clubs
licensed to sell alcohol to notify the Alcohol Beverage Control Administration
of any life-threatening medical emergencies occurring on the licensee?s
premises within a week of the emergency?s occurrence; and authorizing the
Commissioner of the Alcohol Beverage Control Administration to revoke, suspend
or otherwise sanction a licensee for failing to notify the Alcohol Beverage
Control Administration of a life-threatening medical emergency that has taken
place on the licensee?s premises.?
Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates and request
concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2555, Relating to tax credits for
apprenticeship training in construction trades.
??????????? On motion of Delegate Cowles, the
House of Delegates refused to concur in the following amendment of the bill by
the Senate and requested the Senate to recede therefrom:
On
page two, section one, after line twenty‑five, by inserting a new
subsection, designated subsection (d), to read as follows:
?(d)
Apprentices shall be legal residents.
? In addition to other requirements of this section, in order for a taxpayer to
claim the credit created in this section, the taxpayer shall require any
apprentice for whom it claims a credit to submit to an employment eligibility
check through the E‑verify system, administered by United States
Citizenship and Immigration Services? followed by semicolon.
And,
By
relettering the remaining subsection.
On
page
And,
By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2555 ? ?A Bill to amend and reenact
?11-13W-1 of the Code of West Virginia, 1931, as amended, relating to tax
credits for apprenticeship training in construction trades; removing
requirement that eligibility is limited to programs jointly administered by
labor and management trustees; providing that the apprentice must be paid at
least two dollars above the applicable minimum wage in order for a
participating taxpayer to claim the credit; conforming provisions to current
law; and requiring that taxpayers seeking to take advantage of the
apprenticeship tax credit must perform an employment eligibility check through
the E-verify system.?
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2631, Relating to time standards for
disposition of complaint proceedings.
??????????? On motion of Delegate Cowles, the
House of Delegates refused to concur in the following amendment of the bill by
the Senate and requested the Senate to recede therefrom:
On
page two, section five, line sixteen, after the word ?ruling? and the period,
by inserting the following:
?The
time period for final ruling shall be tolled for any delay requested or caused
by the accused or by counsel for the accused and in no event shall a complaint
proceeding be dismissed for exceeding the time standards in this section when
such overage is the result of procedural delay or obstructive action by the
accused or his or her counsel or agents.?
On
page two, section five, lines seventeen through twenty-three, by striking out
all of subsection (d), and relettering the remaining subsections.
??????????? And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2631 ?
?A Bill to amend and reenact ?30-1-5 of the Code of West Virginia, 1931, as
amended, relating to time standards for disposition of complaint proceedings
and tolling the time periods for delays attributable to the accused.?
Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates and request
concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to recede from its amendment and requested the
House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
??????????? Com.
Sub. for H. B. 2721, Removing the cost limitation on projects completed by
the Division of Highways.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Boso, Swope and Jeffries.
??????????? On motion of Delegate Cowles, the House
of Delegates agreed to the appointment of a Committee of Conference of three
from each house on the disagreeing votes of the two houses.
??????????? Whereupon,
??????????? The Speaker appointed as conferees
on the part of the House of Delegates the following:
??????????? Delegates Walters, Gearheart and
Bates.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to recede from its amendment and requested the
House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
??????????? Com.
Sub. for H. B. 2722, Eliminating the financial limitations on utilizing the
design-build program for highway construction.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Boso, Swope and Jeffries.
??????????? On motion of Delegate Cowles, the
House of Delegates agreed to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses.
??????????? Whereupon,
??????????? The Speaker appointed as conferees
on the part of the House of Delegates the following:
??????????? Delegates Walters, Gearheart and
Bates.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect from passage, a bill
of the House of Delegates, as follows:
??????????? Com.
Sub. for H. B. 2759, Creating Statewide Interoperable Radio Network.
??????????? On motion of Delegate
Cowles, the House concurred in the following amendment of the bill by the
Senate:
??????????? On page one, by striking out
everything after the enacting section and inserting in lieu thereof the
following:
?ARTICLE 4. OFFENSES AND PENALTIES.
??60A-4-409. Prohibited acts ?
Transportation of controlled substances into state; penalties.
(a)
Except as otherwise authorized by the provisions of this code, it shall be
is unlawful for any person to transport or cause to be transported into
this state a controlled substance with the intent to deliver the same or with
the intent to manufacture a controlled substance.
(b) Any
person who violates this section with respect to:
(1) A
controlled substance classified in Schedule I or II, which is a narcotic drug,
shall be guilty of a felony and, upon conviction, may be imprisoned in the
state correctional facility for not less than one year a determinate
term of not less than one nor more than fifteen years, or fined not more
than $25,000, or both;
(2) Any
other controlled substance classified in Schedule I, II or III shall be guilty
of a felony and, upon conviction, may be imprisoned in the state correctional
facility for a determinate term of not less than one year nor more than five
ten years, or fined not more than $15,000, or both: Provided, That for the substance
marihuana, as scheduled in subdivision (24) subsection (d), section two hundred
four, article two of this chapter, the penalty, upon conviction of a violation
of this subsection, shall be that set forth in subdivision (3) of this
subsection.
(3) A
substance classified in Schedule IV shall be guilty of a felony and, upon
conviction, may be imprisoned in the state correctional facility for a
determinate term of not less than one year nor more than three five
years, or fined not more than $10,000, or both;
(4) A
substance classified in Schedule V shall be guilty of a misdemeanor and, upon
conviction, may be confined in jail for not less than six months nor more than
one year, or fined not more than $5,000, or both: Provided, That for
offenses relating to any substance classified as Schedule V in article ten of
this chapter, the penalties established in said article apply.
(c)
Notwithstanding the provisions of subsection (b) of this section, any person
violating or causing a violation of subsection (a) of this section involving
one kilogram or more of heroin, five kilograms or more of cocaine or cocaine
base, one hundred grams or more of phencyclidine, ten grams or more of lysergic
acid diethylamide, or fifty grams or more of methamphetamine or five hundred
grams of a substance or material containing a measurable amount of
methamphetamine, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for a determinate sentence of not
less than two nor more than thirty years.
(d)
Notwithstanding the provisions of subsection (b) of this section, any person
violating or causing a violation of subsection (a) of this section involving
one hundred but fewer than 1000 grams of heroin, not less than five hundred but
fewer than 5,000 grams of cocaine or cocaine base, not less than ten but fewer
than ninety-nine grams of phencyclidine, not less than one but fewer than ten
grams of lysergic acid diethylamide, or not less than five but fewer than fifty
grams of methamphetamine or not less than fifty grams but fewer than five
hundred grams of a substance or material containing a measurable amount of
methamphetamine, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for a determinate sentence of not
less than two nor more than twenty years.
(e)
Notwithstanding the provisions of subsection (b) of this section, any person
violating or attempting to violate the provisions of subsection (a) of this
section involving not less than ten grams nor more than one hundred grams of
heroin, not less than fifty grams nor more than five hundred grams of cocaine
or cocaine base, not less than two grams nor more than ten grams of
phencyclidine, not less than two hundred micrograms nor more than one gram of
lysergic acid diethylamide, or not less than four hundred ninety nine
milligrams nor more than five grams of methamphetamine or not less than twenty
grams nor more than fifty grams of a substance or material containing a
measurable amount of methamphetamine is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility for a determinate
sentence of not less than two nor more than fifteen years.
(c)(f) The
offense established by this section shall be in addition to and a separate and
distinct offense from any other offense set forth in this code.?
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2759 ? ?A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section designated
?5A-3-3a; to amend and reenact ?5A-6-8 of said code; to amend and reenact
?5A-10-6 of said code; and to amend said code by adding thereto a new article,
designed ?15-14-1, ?15-14-2, ?15-14-3, ?15-14-4, ?15-14-5, ?15-14-6, ?15-14-7,
?15-14-8, ?15-14-9 and ?15-14-10, all relating to creating Statewide
Interoperable Radio Network; establishing short title; defining terms;
establishing objectives and purpose; creating position of Statewide
Interoperable Coordinator; prescribing duties for Statewide Interoperability
Coordinator; creating Statewide Interoperability Executive Committee;
prescribing duties for Statewide Interoperability Executive Committee; creating
the Regional Interoperability Committee; prescribing duties for Regional
Interoperability Committee; providing for transfer of assets and staffing of
Statewide Interoperable Radio Network from the Department of Health and Human
Resources to the West Virginia Department of Homeland Security and Emergency
Management with a certain exception; establishing special revenue account for
Statewide Interoperable Radio Network designated as the Statewide Interoperable
Radio Network Account; providing for deposit of revenues derived from the lease
of property managed as part of the West Virginia Statewide Interoperable Radio
Network into the Statewide Interoperable Radio Network Account; exempting
Statewide Interoperable Radio Network from certain Purchasing Division and
Office of Technology requirements; and authorizing emergency and legislative
rulemaking.?
??????????? On
the passage of the bill, the yeas and nays were taken (Roll No. 513), and there were--yeas 100, nays none, absent and not
voting none.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2759) passed.
??????????? Delegate
Cowles moved that the bill take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 514), and there
were--yeas 100, nays none, absent and not voting none.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2759) takes effect from its passage.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect from passage, a bill
of the House of Delegates, as follows:
??????????? Com.
Sub. for H. B. 2805, Finding and declaring certain claims against the state
and its agencies to be moral obligations of the state.
??????????? On motion of Delegate Cowles, the
House of Delegates refused to concur in the following amendment of the bill by
the Senate and requested the Senate to recede therefrom:
??????????? On page seven, section one, by
striking out paragraph (116).?
On
page twenty, section one, by striking out paragraph (466).
On
page twenty-one, section one, by striking out paragraph (480).
And,
By
renumbering the remaining paragraphs.
Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates and request
concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? H.
B. 2962, Enlarging the authority of the Tax Commissioner to perform
background investigations of employees and contractors.
??????????? On motion of Delegate
Cowles, the House concurred in the following amendment of the bill by the
Senate:
??????????? On page four, section one, line
seventy-six, after the word ?state?, by striking out the word ?of? and
inserting in lieu thereof the word ?or?.
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 515),
and there were--yeas 100, nays none, absent and not voting none.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (H. B. 2962) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? H.
B. 2967, Relating generally to administration of estates and trusts.
??????????? On motion of Delegate
Cowles, the House concurred in the following amendment of the bill by the
Senate:
On
page one, by striking out everything after the enacting clause and inserting in
lieu thereof the following:
?That
?44-1-1, ?44-1-6, ?44-1-7, ?44-1-8, ?44-1-14a and ?44-1-26 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; that ?44-3A-3
of said code be amended and reenacted; and that ?44-5-3 of said code be amended
and reenacted, all to read as follows:
ARTICLE
1. PERSONAL REPRESENTATIVES.
?44-1-1.
Executor has no powers before qualifying.
A
person appointed by a will executor thereof shall not have the powers of
executor until he or she qualifies as such by taking an oath and giving
bond, unless not required to post bond by section eight of this article,
before the county court commission in which the will, or an
authenticated copy thereof, is admitted to record, or before the clerk thereof
in vacation, except that he or she may provide for the burial of the
testator, pay reasonable funeral expenses and preserve the estate from waste.
?44-1-6. Bond and oath;
termination of grant in certain cases.
At
the time of the grant of administration upon the estate of any intestate, the
person to whom it is granted shall, in the court county commission
or before the clerk granting it, give bond, unless not required to post bond
by section eight of this article, and take an oath that the deceased has left
no will so far as he or she knows, and that he or she will
faithfully perform the duties of his the office to the best of
his or her judgment. If a will of the deceased be afterwards admitted to
record, or if, after administration is granted to a creditor or other person
than a distributee, any distributee who shall not have before refused shall
apply for administration, there may be a grant of probate or administration,
after reasonable notice to such creditor or other person theretofore appointed,
in like manner as if the former grant had not been made, and such former grant
shall thereupon cease.
?44-1-7. Penalty of bond.
(a) Every bond of required
to be given by an executor or administrator shall be in a penalty equal, at
the least, to the full value of the personal estate of the deceased to be
administered; and where there is a will which authorizes the executor or
administrator to sell real estate, or receive the rents and profits thereof,
the bond shall be in a penalty equal, at the least, to the full value both of
such personal estate and of such real estate, or of such personal estate and of
such rents and profits, as the case may be.
(b) If on the filing of the inventory
or appraisement of the estate it shall appear that the penalty of the bond does
not comply as to amount with the foregoing requirements, the court county
commission in which, or the clerk before whom, such bond was given, shall
immediately notify such executor or administrator of such fact and require of
him or her a new or additional bond, and the failure of such executor or
administrator to give the same within a reasonable time shall be sufficient
cause for his or her removal.
?44-1-8.
When executor or administrator not to give bond; when surety not
required.
(a)
Subject to
the provisions of section three, article five of this chapter governing the
appointment of a nonresident of this state as an executor, where the will
directs that an executor shall not give bond, it shall not be required of him
or her, unless at the time the will is admitted to probate or at any time
subsequently, on the application of any person interested, or from the
knowledge of the court and after a hearing, it is required by the county
commission or clerk admitting the will to probate, it is deemed proper
that bond ought to be given.
(b)
No surety shall be required on the bond of the executor if he or she is also
the sole beneficiary of the decedent, unless the will directs otherwise, and no
surety shall be required on the bond of the administrator if he or she is the
sole distributee of the decedent, unless at the time the will is admitted to
probate or the administrator is appointed or at any time thereafter, on the
application of any person interested, and after a hearing, it is required by
the county commission that surety ought to be given.
(c)
In all such cases where no surety is required of the executor or administrator,
the executor or administrator shall nevertheless be liable upon his or her bond
upon his or her own personal recognizance in the event of default, failure or
misadministration by the executor or administrator.
?44-1-14a. Notice of
administration of estate; time limits for filing of objections; liability of
personal representative.
(a)
Within thirty days of the filing of the appraisement of any estate or within
one hundred twenty days of the date of qualification of the personal
representative if an appraisement is not filed as required in section fourteen
of this article, the clerk of the county commission shall publish, once a week
for two successive weeks, in a newspaper of general circulation within the
county of the administration of the estate, a notice, which is to include:
(1)
The name of the decedent;
(2)
The name and address of the county commission before whom the proceedings are
pending;
(3)
The name and address of the personal representative;
(4)
The name and address of any attorney representing the personal representative;
(5)
The name and address of the fiduciary commissioner, if any;
(6)
The date of first publication;
(7)
A statement that claims against the estate must be filed within sixty days of
the date of first publication in accordance with article two or article three-a
of this chapter;
(8)
A statement that any person seeking to impeach or establish a will must make a
complaint in accordance with section eleven, twelve or thirteen, article five,
chapter forty-one of this code;
(9)
A statement that an interested person objecting to the qualifications of the
personal representative or the venue or jurisdiction of the court must be filed
with the county commission within sixty days after the date of first
publication or thirty days of service of the notice, whichever is later; and
(10)
If the appraisement of the assets of the estate shows the value to be $200,000
or less, exclusive of real estate specifically devised and nonprobate assets,
or, if it appears to the clerk that there is only one beneficiary of the
probate estate and that the beneficiary is competent at law, a statement
substantially as follows: ?Settlement of the estate of the following named
decedents will proceed without reference to a fiduciary commissioner unless
within sixty days from the first publication of this notice a reference is
requested by a party in interest or an unpaid creditor files a claim and good
cause is shown to support reference to a fiduciary commissioner?. If a party in
interest requests the fiduciary commissioner to conclude the administration of
the estate or an unpaid creditor files a claim, no further notice to creditors
shall be published in the newspaper, and the personal representative shall be
required to pay no further fees, except to the fiduciary commissioner for
conducting any hearings, or performing any other duty as a fiduciary
commissioner. The time period for filing claims against the estate shall expire
upon the time period set out in the notice to creditors published by the clerk
of the county commission as required in this subsection (a). If an unpaid
creditor files a claim, the fiduciary commissioner shall conduct a hearing on
the claim filed by the creditor, otherwise, the fiduciary commissioner shall
conclude the administration of the estate as requested by the interested party.
(11)
This notice shall be published as a Class II legal advertisement in compliance
with the provisions of article three, chapter fifty-nine of this code. The
publication of such notice shall be equivalent to personal service on
creditors, distributees and legatees.
(b)
If no appraisement is filed within the time period established pursuant to
section fourteen of this article, the county clerk shall send a notice to the
personal representative by first class mail, postage prepaid, indicating that
the appraisement has not been filed.
(c)
The personal representative shall promptly make a diligent search to determine
the names and addresses of creditors of the decedent who are reasonably
ascertainable.
(d)
The personal representative shall, within sixty days after the date of first
publication, serve a copy of the notice, published pursuant to subsection (a)
of this section, by first class mail, postage prepaid or by personal service on
the following persons:
(1)
If the personal representative is not the decedent?s surviving spouse and not
the sole beneficiary or sole heir, the decedent?s surviving spouse, if any;
(2)
If there is a will and the personal representative is not the sole beneficiary,
any beneficiaries;
(3)
If there is not a will and the personal representative is not the sole heir,
any heirs;
(4)
The trustee of any trust in which the decedent was a grantor, if any; and
(5)
All creditors identified under subsection (c) of this section, other than a
creditor who filed a claim as provided in article two of this chapter or a
creditor whose claim has been paid in full.
(e)
Any person interested in the estate who objects to the qualifications of the
personal representative or the venue or jurisdiction of the court, shall file
notice of an objection with the county commission within ninety sixty
days after the date of the first publication as required in subsection (a) of
this section or within thirty days after service of the notice as required by
subsection (d) of this section, whichever is later. If an objection is not
timely filed, the objection is forever barred.
(f)
A personal representative acting in good faith is not personally liable for
serving notice under this section, notwithstanding a determination that notice
was not required by this section. A personal representative acting in good
faith who fails to serve the notice required by this section is not personally
liable. The service of the notice in accordance with this subsection may not be
construed to admit the validity or enforceability of a claim.
(g)
The clerk of the county commission shall collect a fee of $20 for the publication
of the notice required in this section.
(h)
For purposes of this section, the term ?beneficiary? means a person designated
in a will to receive real or personal property.
?44-1-26.
Action on bond of personal representative.
Where
an execution on a judgment or decree against a personal representative is
returned without being satisfied, there may be forthwith brought and prosecuted
an action against the obligors surety in any bond given by such
personal representative for the faithful discharge of his or her duties.
article 3a. optional procedure for proof of
claim
?44-3A-3. Office of fiduciary supervisor
created; general powers; qualifications; tests for qualification; training
program; salary.
(a)
There is hereby created within the county commission an office, designated the
fiduciary supervisor, who shall be appointed by order of the commission and
whose office, with the consent of the clerk of the county commission, shall be
housed within the office of such clerk or shall be housed in such other office
as the commission may designate. Such fiduciary supervisor shall at the local
option of each such commission, be either a part-time or full-time employee as
may be required by the county commission and shall receive such salary as may
be fixed by order of the county commission.
(b) The
fiduciary supervisor shall have general supervision of all fiduciary matters
and of the fiduciaries or personal representatives thereof and of all fiduciary
commissioners and of all matters referred to such commissioners and shall make
all ex parte settlements of the accounts of such fiduciaries except as to those
matters referred to fiduciary commissioners for settlement.
(c) The
county commission shall determine that the person to be appointed as fiduciary
supervisor is fully qualified by education or experience, or both, to perform
the duties assigned to such office by this chapter or other provisions of this
code. Such person shall have the requisite knowledge of the legal issues raised
and problems presented by any of the proceedings had and documents filed
pursuant to the chapter, the procedures required with respect thereto, the
rights of all parties and interested persons with respect to such procedures
and the duties to be performed in examining and approving the several and
various papers and documents presented to the fiduciary supervisor. The State Tax
Commissioner Auditor shall design and supervise a test to be given
to all persons selected or appointed as fiduciary supervisor who are not
licensed to practice law in this state, if any, which test shall include
such matters as the Tax Commissioner deems appropriate to determine the
proficiency, experience, knowledge and skill to perform all of the duties
imposed upon or to be imposed upon fiduciary supervisors generally. Such test
shall be administered under the authority of the State Tax Commissioner Auditor
by such person or persons as he or she may designate either at the
county wherein the fiduciary supervisor is to serve or at such other place as
the Tax Commissioner State Auditor may designate. The results of
the test given to any person or persons shall be kept confidential except as to
those persons who have completed the same to the satisfaction of the Tax
Commissioner State Auditor and except as to those persons who may
desire their individual test results to be made public. Each county
commission shall be notified as to the names of those persons who have satisfactorily
completed such test. The Tax Commissioner shall provide for the uniformity of
the test to be given and for grading and evaluating the results thereof.
The Tax
Commissioner The State Auditor shall at least annually conduct a training
program for fiduciary supervisors who are not licensed to practice law in this
state. The training program shall be conducted at such times and places and
consist of such subjects as the Tax Commissioner state Auditor
may determine. All fiduciary supervisors who are not licensed to practice law
shall be required to attend such training programs and those supervisors as are
so licensed may attend.
(d) The
fiduciary supervisor shall give bond with good security to be approved by the
county commission in an amount equal to the amount posted by the clerk of the
county commission in the county wherein such fiduciary supervisor is to serve.
(e)
Neither the fiduciary supervisor nor any person to whom the duties of fiduciary
supervisor have been delegated, in whole or in part (excluding fiduciary
commissioners) shall engage in the practice of law, for compensation or
otherwise, with respect to the administration of any estate or trust wherein
the fiduciary thereof has qualified in his or her county or with respect
to any proceedings before him or her or which are or may be referred to
a fiduciary commissioner in his or her county. Nor shall a fiduciary
commissioner or special fiduciary commissioner engage in the practice of law
with respect to matters referred to him or her as such commissioner. Any
fiduciary supervisor or person to whom any of the functions or duties of the
fiduciary supervisor have been delegated or fiduciary commissioner or special
fiduciary commissioner who so engages in the practice of law contrary to the limited
prohibitions of this section, shall be removed from his or her office or
employment and, in addition thereto, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined $1,000.
ARTICLE
5. GENERAL PROVISIONS AS TO FIDUCIARIES.
?44-5-3.
Appointment of nonresident; bond; service of notice and process; fees; penalty.
(a)
Notwithstanding any other provision of law, no individual who is a nonresident
of this state, nor any banking institution which does not maintain a main
office or branch office within this state nor any corporation having its
principal office or place of business outside this state, may be appointed or
act as executor, administrator, curator, testamentary guardian, guardian or
conservator in this state, except that:
(1)
An individual who is a nonresident of this state may be appointed ancillary
administrator of a nonresident decedent?s assets situate in this state if such
nonresident individual is lawfully acting as executor in said decedent?s state
of domicile and submits letters of probate authenticated by the probate
authorities of the decedent?s state of domicile to the clerk of the county
commission of any county of this state wherein ancillary administration is
sought;
(2)
An individual who is a nonresident of this state may be appointed ancillary
administrator of a nonresident decedent?s assets situate in this state if such
nonresident individual is acting as administrator in said decedent?s state of
domicile and submits letters of administration authenticated by the probate
authorities of the decedent?s state of domicile to the clerk of the county
commission of any county of this state wherein ancillary administration is
sought;
(3)
An individual who is a nonresident of this state may be appointed and act as testamentary
guardian of a nonresident infant and thereby exercise dominion and control over
such nonresident infant?s assets situate in this state upon submission of
authenticated documentation that such nonresident testamentary guardian was so
appointed at the place of domicile of the nonresident infant. Such
authenticated documentation shall be submitted to the clerk of the county
commission of any county of this state wherein assets belonging to such
nonresident infant are situate;
(4)
An individual who is a nonresident of this state and who is named executor by a
resident decedent may qualify and act as executor in this state;
(5)
An individual who is a nonresident of this state may be appointed and act as
administrator of a resident decedent?s assets in this state if appointed in
accordance with the provisions of section four, article one of this chapter;
(6)
An individual who is a nonresident of this state may be appointed as the
testamentary guardian of a resident infant if appointed in accordance with the
provisions of section one, article ten of this chapter; and
(7)
An individual who is a nonresident of this state may be appointed as guardian
or conservator of a resident incompetent: Provided, That such
appointment is made in accordance with the provisions of article two, chapter
forty-four-a of this code and if such nonresident individual may otherwise
qualify as guardian or conservator.
(b)
Nonresident individuals enumerated in subsection (a) of this section shall give
bond with corporate surety thereon, qualified to do business in this state, and
the amount of such bond shall not be less than double the value of the personal
assets and double the value of any real property authorized to be sold or
double the value of any rents and profits from any real property which the
nonresident individual is authorized to receive, except that:
(1)
Any nonresident individual enumerated in subsection (a) of this section who is
the spouse, parent, sibling, lineal descendent or sole beneficiary of a
resident or nonresident decedent shall give bond with corporate surety thereon
qualified to do business in this state, with such penalty as may be fixed
pursuant to the provisions of section sections seven or eight,
article one of this chapter, as approved by the clerk of the county commission;
(2)
Where the terms of a decedent?s will directs that a nonresident individual
enumerated in subdivisions (1), (3), (4) and (6), subsection (a) of this
section named in a decedent?s will shall not give bond or give bond at a
specified amount, it shall not be required or shall be required only to the
extent required under the terms of the will, unless at the time the will is
admitted to record or at any time subsequently, on the application of any
person interested, or from the knowledge of the commission or clerk admitting
the will to record, it is deemed proper that greater bond be given.
(c)
When a nonresident individual is appointed as executor, administrator,
testamentary guardian, guardian or conservator pursuant to the provisions of
subsection (a) of this section, said individual thereby constitutes the clerk
of the county commission wherein such appointment was made as his or her
true and lawful attorney-in-fact upon whom may be served all notices and
process in any action or proceeding against him or her as executor,
administrator, testamentary guardian, guardian or conservator or with respect
to such estate, and such qualification shall be a manifestation of said
nonresident individual?s agreement that any notice or process, which is served
in the manner hereinafter provided in this subsection, shall be of the same
legal force and validity as though such nonresident was personally served with
notice and process within this state. Service shall be made by leaving the
original and two copies of any notice or process together with a fee of $5 with
the clerk of such county commission. The fee of $5 shall be deposited with the
county treasurer. Such clerk shall thereupon endorse upon one copy thereof the
day and hour of service and shall file such copy in his or her office
and such service shall constitute personal service upon such nonresident: Provided,
That the other copy of such notice or process shall be forthwith sent by
registered or certified mail, return receipt requested, deliver to addressee
only, by said clerk or to such nonresident at the address last furnished by him
or her to said clerk and either: (1) Such nonresident?s return receipt
signed by him or her; or (2) the registered or certified mail bearing
thereon the stamp of the post office department showing that delivery therefore
was refused by such nonresident is appended to the original notice or process
filed therewith in the office of the clerk of the county commission from which
such notice or process was issued. No notice or process may be served on such
clerk of the county commission or accepted by him or her less than
thirty days before the return date thereof. The clerk of such county commission
shall keep a record in his or her office of all such notices and processes
and the day and hour of service thereof. The provision for service of notice or
process herein provided is cumulative and nothing herein contained shall be
construed as bar to service by publication where proper or the service of
notice or process in any other lawful mode or manner.
(d)
The personal estate of a resident decedent, infant or incompetent may not be
removed from this state until the inventory or appraisement of that resident
decedent?s, infant?s or incompetent?s assets have been filed and any new or
additional bond required to satisfy the penalty specified in subsection (b) of
this section has been furnished. The liability of a nonresident executor,
administrator, testamentary guardian, guardian or conservator and of any such
surety shall be joint and several and a civil action on any such bond may be
instituted and maintained against the surety, notwithstanding any other
provision of this code to the contrary, even though no civil action has been
instituted against such nonresident.
(e)
Any such nonresident who removes from this state assets administered in and
situate in this state without complying with the provisions of this section,
the provisions of article eleven of this chapter or any other requirement
pertaining to fiduciaries generally, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000 or confined in the
county jail for not more than one year, or, in the discretion of the court, by
both such fine and confinement.
(f)
If a nonresident appointed pursuant to subsection (a) of this section fails or
refuses to file an accounting required by this chapter, and the failure
continues for two months after the due date, he or she may, upon notice
and hearing, be removed or subjected to any other appropriate order by the
county commission, and if his or her failure or refusal to account
continues for six months, he or she shall be removed by the county
commission.?
And,
By
amending the title of the bill to read as follows:
H. B. 2967 ? ?A Bill to amend and reenact ?44-1-1,
?44-1-6, ?44-1-7, ?44-1-8, ?44-1-14a and ?44-1-26 of the Code of West Virginia,
1931, as amended; to amend and reenact ?44-3A-3 of said code; and to amend and
reenact ?44-5-3 of said code, all relating generally to administration of
estates and trusts; waiving surety requirements for administrators of estates
where grantee is sole beneficiary or sole distributee of the decedent;
requiring county commission to hold hearing if application filed by interested
party to compel nonresident executor otherwise exempt from bond requirements to
post bond; requiring county commission to hold hearing if application filed by
interested party to compel sole beneficiary to post surety; removing authority
of clerk of county commission to require bond or surety from certain executors
and administrators upon knowledge; making executor or administrator not
required to post surety liable upon his or her own personal recognizance in the
event of default, failure or misadministration; requiring interested parties
objecting to the qualifications of a personal representative or venue to file
notice with the county commission sixty days after the date of first
publication; transferring to state Auditor duty to administer fiduciary
supervisor qualifying test; requiring state Auditor provide annual training for
fiduciary supervisors not licensed to practice law in this state; authorizing
action against bond surety when execution on judgment or decree against
personal representative is returned without being satisfied; and making
technical corrections.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 516),
and there were--yeas 99, nays 1, absent and not voting none, with the nays
being as follows:
??????????? Nays: Fast.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (H. B. 2967) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2980, Relating to civil lawsuit filing fees for multiple
defendant civil action.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On
page one, by striking out everything after the enacting section and inserting
in lieu thereof the following:
?CHAPTER 15.
PUBLIC SAFETY.
ARTICLE 2. WEST
VIRGINIA STATE POLICE.
?15-2-24d.
State Police Forensic Laboratory Fund.
The
State Police Forensic Laboratory Fund is hereby created within the Treasury of
the state. The fund shall be administered by the superintendent and shall
consist of all moneys made available for the operations of the State Police
Forensic Laboratory from any source, including, but not limited to, all fees,
all gifts, grants, bequests or transfers from any source, any moneys that may
be appropriated and designated for the forensic laboratory by the Legislature
and all interest or other return earned from investment of the fund.
Expenditures from the fund shall be for the operations of the State Police
Forensic Laboratory and are not authorized from collections but are to be made
only in accordance with appropriation by the Legislature and in accordance with
the provisions of article three, chapter twelve of this code and upon the
fulfillment of the provisions set forth in article two, chapter eleven-b of
this code: Provided, That for the
fiscal year ending June 30, 2018, expenditures are authorized from collections
rather than pursuant to an explicit appropriation by the Legislature.
CHAPTER 59. FEES,
ALLOWANCES AND COSTS; NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND
ALLOWANCES.
?59-1-11.
Fees to be charged by clerk of circuit court.
(a)
The clerk of a circuit court shall charge and collect for services rendered by
the clerk the following fees which shall be paid in advance by the parties for
whom services are to be rendered:
(1)
Except as provided in subdivisions (2) and (3) of this subsection, for
instituting any civil action under the Rules of Civil Procedure, any statutory
summary proceeding, any extraordinary remedy, the docketing of civil appeals or
removals of civil cases from magistrate court, or any other action, cause, suit
or proceeding, $200, of which $30 shall be deposited in the Courthouse
Facilities Improvement Fund created by section six, article twenty-six, chapter
twenty-nine of this code and $45 shall be deposited in the special revenue
account designated the Fund for Civil Legal Services for Low Income Persons,
established by paragraph (B), subdivision (4), subsection (c), section ten of
this article, and $20 deposited in the special revenue account created in
section six hundred three, article twenty-six, chapter forty-eight of this code
to provide legal services for domestic violence victims;
(2)
For instituting an action for medical professional liability, $400, of which
$10 shall be deposited in the Courthouse Facilities Improvement Fund created by
section six, article twenty-six, chapter twenty-nine of this code;
(3)
Beginning on and after July 1, 1999, for instituting an action for divorce,
separate maintenance or annulment, $135;
(4)
For petitioning for the modification of an order involving child custody, child
visitation, child support or spousal support, $85;
(5)
For petitioning for an expedited modification of a child support order, $35; and
(6)
For filing any pleading that includes a counterclaim, cross claim, third-party
complaint or motion to intervene, $200, which shall be deposited in the special
revenue account designated the Fund for Civil Legal Services for Low Income
Persons, established by paragraph (B), subdivision (4), subsection (c), section
ten of this article: Provided, That
this subdivision and the fee it imposes does not apply in family court cases
nor may more than one such fee be imposed on any one party in any one civil
action; and
(7)
Except for civil actions within the jurisdiction of family courts, for each
defendant or respondent named in the initial pleading upon the institution of a
civil action in which there are two or more named defendants, and for each
additional defendant, respondent or third-party defendant subsequently named in
a pleading filed in the civil action, $15, payable upon the institution of the
civil action or upon the filing of the initial pleading that names the
additional defendant, respondent or third-party defendant, of which $10 shall
be deposited in the general fund of the county in which the office of the
circuit clerk is located, and $5 shall be deposited in the State Police
Forensic Laboratory Fund, established under section twenty-four-d, article two,
chapter fifteen of this code: Provided,
That for purposes of this subdivision, ?defendant or respondent named? does not
include those defendants or respondents identified as ?John/Jane Doe.?
?(b) In addition to the foregoing fees, the
following fees shall be charged and collected:
(1)
For preparing an abstract of judgment, $5;
(2)
For a transcript, copy or paper made by the clerk for use in any other court or
otherwise to go out of the office, for each page, $1;
(3)
For issuing a suggestion and serving notice to the debtor by certified mail,
$25;
(4)
For issuing an execution, $25;
(5)
For issuing or renewing a suggestee execution and serving notice to the debtor
by certified mail, $25;
(6)
For vacation or modification of a suggestee execution, $1;
(7)
For docketing and issuing an execution on a transcript of judgment from
magistrate court, $3;
(8)
For arranging the papers in a certified question, writ of error, appeal or
removal to any other court, $10, of which $5 shall be deposited in the
Courthouse Facilities Improvement Fund created by section six, article
twenty-six, chapter twenty-nine of this code;
(9)
For each subpoena, on the part of either plaintiff or defendant, to be paid by
the party requesting the same, 50 cents;
(10)
For additional service, plaintiff or appellant, where any case remains on the
docket longer than three years, for each additional year or part year, $20; and
(11)
For administering funds deposited into a federally insured interest-bearing
account or interest-bearing instrument pursuant to a court order, $50, to be
collected from the party making the deposit. A fee collected pursuant to this
subdivision shall be paid into the general county fund.
(c)
In addition to the foregoing fees, a fee for the actual amount of the postage
and express may be charged and collected for sending decrees, orders or records
that have not been ordered by the court to be sent by mail or express.
(d)
The clerk shall tax the following fees for services in a criminal case against
a defendant convicted in such court:
(1)
In the case of a misdemeanor, $85; and
(2)
In the case of a felony, $105, of which $10 shall be deposited in the
Courthouse Facilities Improvement Fund created by section six, article
twenty-six, chapter twenty-nine of this code.
(e)
The clerk of a circuit court shall charge and collect a fee of $25 per bond for
services rendered by the clerk for processing of criminal bonds and the fee
shall be paid at the time of issuance by the person or entity set forth below:
(1)
For cash bonds, the fee shall be paid by the person tendering cash as bond;
(2)
For recognizance bonds secured by real estate, the fee shall be paid by the
owner of the real estate serving as surety;
(3)
For recognizance bonds secured by a surety company, the fee shall be paid by
the surety company;
(4)
For ten percent recognizance bonds with surety, the fee shall be paid by the
person serving as surety; and
(5)
For ten percent recognizance bonds without surety, the fee shall be paid by the
person tendering ten percent of the bail amount.
In
instances in which the total of the bond is posted by more than one bond
instrument, the above fee shall be collected at the time of issuance of each
bond instrument processed by the clerk and all fees collected pursuant to this
subsection shall be deposited in the Courthouse Facilities Improvement Fund
created by section six, article twenty-six, chapter twenty-nine of this code.
Nothing in this subsection authorizes the clerk to collect the above fee from
any person for the processing of a personal recognizance bond.
(f)
The clerk of a circuit court shall charge and collect a fee of $10 for services
rendered by the clerk for processing of bail piece and the fee shall be paid by
the surety at the time of issuance. All fees collected pursuant to this
subsection shall be deposited in the Courthouse Facilities Improvement Fund
created by section six, article twenty-six, chapter twenty-nine of this code.
(g)
No clerk is required to handle or accept for disbursement any fees, cost or
amounts of any other officer or party not payable into the county treasury
except on written order of the court or in compliance with the provisions of
law governing such fees, costs or accounts.
(h)
Fees for removal of civil cases from magistrate court shall be collected by the
magistrate court when the case is still properly before the magistrate court.
The magistrate court clerk shall forward the fees collected to the circuit
court clerk.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for H.
B. 2980 ? ?A Bill to
amend the Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated ?15-2-24d; and to amend and reenact ?59-1-11 of said code,
all relating to creating a special revenue account designated the State Police
Forensic Laboratory Fund; providing for funding mechanisms; clarifying funding
sources; establishing parameters for expenditures from the fund; vesting
administration responsibility for the fund to the superintendent; relating to
fees for services rendered by circuit clerks in certain civil actions; imposing
additional fees in certain civil actions that include two or more named
defendants, respondents or third-party defendants; setting that fee at $15 per
defendant; providing for distribution of the additional fees between the
general fund of the county in which the office of the circuit clerk is located
and the State Police Forensic Laboratory Fund; and excluding John or Jane Doe
defendants from the per-defendant fee.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 517),
and there were--yeas 88, nays 12, absent and not voting none, with the nays
being as follows:
??????????? Nays: Eldridge, Folk, Gearheart,
Hicks, Marcum, Martin, McGeehan, Paynter, Phillips, Rodighiero, Upson and
Wagner.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2980) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the House of Delegates amendment, with amendment, and the
passage, as amended, of
??????????? Com.
Sub. for S. B. 362, Authorizing redirection of certain amounts to General
Revenue Fund.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On
page six, by striking out all of sections ten-d and ten-e and inserting in lieu
thereof a new section, designated ten-g, all to read as follows:
??29-22A-10g.
Redirection of certain amounts from net terminal revenue.
(a)
The Governor may, by Executive Order, redirect seventy-five percent of the
deposits of revenues derived from net terminal income imposed under this
article, for any period commencing after June 30, 2017, and ending before July
1, 2018, to the General Revenue Fund, instead of to the funds otherwise
mandated in this article, in article two-d, chapter twenty-three of this code
or in any other provision of this code, until certification of the Governor to
the Legislature that an independent actuary has determined that the unfunded
liability of the Old Fund, as defined in chapter twenty-three of this code, has
been paid or provided for in its entirety.
(b)
The Governor is authorized to redirect deposits of revenues, pursuant to
subsection (a) of this section, notwithstanding the following provisions of
code:
(1)
Paragraph (B), subdivision (9), subsection (c), section ten of this article;
(2)
Paragraph (B), subdivision (9), subsection (a), section ten-b of this article;
(3)
Subdivision (1), subsection (g), section ten-d of this article;
(4)
Subdivision (1), subsection (f), section ten-e of this article; or
(5)
Any other provision of this code to the contrary.?
And,
On
page one, by striking out the enacting section and inserting in lieu thereof a
new enacting section, to read as follows:
?That
?23-2C-3 of the Code of West Virginia, 1931, as amended, be amended and
reenacted; and that said code be amended by adding thereto a new section,
designated ?29-22A-10g, all to read as follows? and a colon.
And,
By
amending the title of the bill to read as follows:
Com. Sub. for S. B. 362 ? ?A Bill to amend and reenact ?23-2C-3 of
the Code of West Virginia, 1931, as amended; and to amend said code by adding
thereto a new section, designated ?29-22A-10g, all relating to authorizing the
redirection of certain amounts to the General Revenue Fund; authorizing the
redirection of amounts collected from certain surcharges and assessments on
workers? compensation insurance policies for periods prior to July 1, 2018; and
authorizing the redirection of amounts collected from certain deposits of
revenues from net terminal income for periods prior to July 1, 2018.?
??????????? The bill, as amended by the House,
and further amended by the Senate, was then put upon its passage.
??????????? The
question being on the passage of the bill, the yeas and nays were taken (Roll No. 518), and there were--yeas
92, nays 8, absent and not voting none, with the nays being as follows:
??????????? Nays: Baldwin, Canestraro, Ferro,
Fluharty, Iaquinta, Robinson, Sponaugle and Williams.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 362) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Resolutions Introduced
??????????? Delegates Robinson, Arvon, Atkinson,
Baldwin, Bates, Blair, Boggs, Brewer, Butler, Byrd, Canestraro, Capito, Caputo,
Cooper, Criss, Dean, Deem, Diserio, Eldridge, Ellington, A. Evans, E. Evans,
Ferro, Fleischauer, Fluharty, Folk, N. Foster, Frich, Gearheart, Hamilton,
Hamrick, Hanshaw, Hartman, Hicks, Higginbotham, Hill, Hollen, Hornbuckle,
Householder, Iaquinta, Isner, Kelly, Kessinger, Lane, Lewis, Longstreth, Love,
Lovejoy, Lynch, Marcum, Maynard, Miley, C. Miller, R. Miller, Moore, Moye,
Overington, Paynter, Pethtel, Phillips, Pushkin, Pyles, Queen, Rodighiero,
Rohrbach, C. Romine, R. Romine, Rowan, Rowe, Shott, Sobonya, Sponaugle,
Statler, Storch, Sypolt, Thompson, Wagner, Walters, Ward, Westfall, White,
Williams, Wilson and Zatezalo offered the following resolution, which was read
by its title and referred to the Committee on Rules:
H. C. R. 137 ? ?Requesting
the Joint Committee on Government and Finance study methods to incentivize and
advise middle and high school students to participate in career and technical
education programs.?
Whereas,
Eighty-one percent of high school dropouts report that real-world learning
opportunities would have kept them in high school; and
Whereas,
Career and technical education programs prepare students to be college and
career ready by providing core academic, technical, and employability skills;
and
Whereas,
High-quality career and technical education programs ensure that coursework is
aligned with rigorous academic standards and specific skills needed in
specialized career pathways are addressed; and
Whereas,
Eighty-one percent of students taking a college preparatory academic curriculum
with rigorous career and technical education courses met college and career
readiness goals; and
Whereas,
The level of academic achievement students attain by eighth grade has a more
significant impact on their college and career readiness than any other
academic factor; and
Whereas,
Neighboring states Ohio and Virginia have middle school level career and
technical training programs and Pennsylvania, Maryland, and Kentucky have high
school level career and technical training programs; and
Whereas,
According to the West Virginia Higher Education Policy Commission, in 2012,
only 56.4 percent of high school students pursued higher education pathways;
and
Whereas,
According to the Association for Career and Technical Education, the graduation
rate for CTE student is a staggering ninety-three percent; and
Whereas,
Eighty percent of secondary CTE graduates who pursued post-secondary education
had earned a credential or were still enrolled after two years; and
Whereas,
According to the National Center for Education Statistics, in 2009, CTE
post-secondary graduates had an employment rate in their field of study of 79.7
percent; and
Whereas,
Given the importance of career and technical education programs in fostering
college and career readiness, it is essential that middle and high school
students are informed and prepared to take advantage of career and technical
education programs in their schools and communities; therefore, be it
Resolved by the Legislature of West Virginia:
That the
Joint Committee on Government and Finance is hereby requested to study methods
to incentivize and advise middle and high school students to participate in
career and technical education programs; and, be it
Further Resolved, That
the Joint Committee on Government and Finance report to the regular session of
the Legislature, 2018, 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 a study, prepare reports and draft necessary
legislation, be paid from legislative appropriations to the Joint Committee on
Government and Finance.
??????????? Delegates Summers, Caputo,
Ellington, Pushkin, Rodighiero and Rohrbach offered the following resolution,
which was read by its title and referred to the Committee on Rules:
H. C. R. 138 ? ?Requesting
the Joint Committee on Government and Finance study the nursing shortage in
West Virginia.?
Whereas,
West Virginia has one of the lowest workforce participation rates in the
country, while simultaneously having one of the highest nursing shortages in
the country; and
Whereas,
Hospitals in the state have had to begin offering lucrative signing bonuses to
entice nurses not living in West Virginia to come to the state; and
Whereas,
Only a third of all RN licenses issued by the West Virginia Board of Nursing in
2016 were issued to individuals native to the state; and
Whereas,
Solving the nursing shortage by means of hiring contracted traveling nurses is
not ideal in the long run, due to nature of driving up costs and increasing
turnover; therefore, be it
Resolved by the Legislature of West Virginia:
That the
Joint Committee on Government and Finance is hereby requested to study and
assist in diagnosing the problem and discussing potential solutions to the
nursing shortage in conjunction with WV Board of Nursing; and, be it
Further Resolved, That the
Joint Committee on Government and Finance report to the regular session of the
Legislature, 2018 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, prepare a report and draft necessary
legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
??????????? Delegates Sobonya, Cowles, Criss,
Frich, Sypolt, Householder, McGeehan, Moore, Phillips and Storch offered the
following resolution, which was read by its title and referred to the Committee
on Rules:
H. C. R. 139 ? ?Requesting the Joint Committee on Government and
Finance study the tax on sales of tobacco products other than cigarettes and
the excise tax on e-cigarette liquid.?
Whereas,
West Virginia Code ?11-17-3(b) levies a tax on tobacco products other than
cigarettes as an excise tax and imposes this tax ?at a rate equal to seven
percent of the wholesale price on each article or item of tobacco products
other than cigarettes sold by the wholesaler or subjobber dealers, whether or
not sold at wholesale, or if not sold, then at the same rate upon the use by
the wholesaler or dealer?; and
Whereas,
Electronic cigarette retailers offer a product that is not a tobacco cigarette
or traditional tobacco product and should therefore be recognized as a
different type of retail product with a tax treatment that is consistent with
taxation of other retail products; and
Whereas,
Electronic cigarette retailers seek the study of the tax on the sales of
e-cigarettes, tax rates and appropriate definitions to properly identify this
product in contrast to tobacco cigarettes and tobacco products other than
cigarettes and study of a fair, proper and modern method for the imposition of
these taxes; and
Whereas,
The industry seeks stability in the West Virginia retail market where an
uncompetitive environment has been created from the current tax structure and,
as a result of which, several electronic cigarette retailers have ceased
operation in West Virginia after the enactment of the current tax structure in
2016; therefore, be it
Resolved by the Legislature of West Virginia:
That the
Joint Committee on Government and Finance is requested to study the tax
treatment of wholesale and retail sales of e-cigarettes and e-cigarette liquid
as distinguished from ?tobacco products other than cigarettes? with
consideration of the rates, point of imposition and fairness of the tax; and,
be it
Further Resolved, That
the Joint Committee on Government and Finance report to the regular session of
the Legislature, 2018, on its findings, conclusions and recommendations,
together with drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That
the expenses necessary to conduct this study, to prepare a report and to draft
necessary legislation be paid from legislative appropriations to the Joint
Committee on Government and Finance.
??????????? Delegates Upson, Blair and Ellington
offered the following resolution, which was read by its title and referred to
the Committee on Rules:
H. C. R. 140 ? ?Requesting
that the Joint Committee on Government and Finance study legislation to
prohibit ?cyberbullying? and electronic harassment of minors.?
Whereas,
Cyberbullying is bullying that takes place using electronic technology.
Electronic technology includes devices and equipment such as cell phones,
computers, and tablets as well as communication tools including social media
sites, text messages, chat, and websites. Examples of cyberbullying include
vicious text messages or emails, rumors sent by email or posted on social
networking sites, and embarrassing pictures, videos, websites, or fake
profiles.
Whereas,
Current statistics indicate that cyberbullying is a very frequent occurrence.
In 2015, a survey conducted by the Center for Disease Control?s Youth Risk
Behavior Surveillance System indicated that an estimated 16% of high school
students were bullied electronically in the 12 months prior to the survey; and
Whereas,
Legislation on bullying and cyberbullying has been proposed and implemented
throughout the country. One such piece of cyberbullying legislation, called ?Grace?s
Law?, was enacted into law in Maryland in 2013. Legislation was proposed in the
2017 Regular Session to implement ?Grace?s Law? in West Virginia. However,
there have been constitutional challenges to cyberbullying laws in several
states recently, which have resulted in those laws being struck down;
therefore, be it
Resolved by the Legislature of West Virginia:
That the
Joint Committee on Government and Finance is hereby requested to study
cyberbullying laws due to the potential constitutional challenges they may
face, and provide some examples of language that could pass constitutional
muster; and, be it
Further Resolved, That
the Joint Committee on Government and Finance report to the regular session of
the Legislature, 2018, on findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That
the expenses necessary to conduct this study, to prepare a report and to draft
necessary legislation to be paid from legislative appropriations to the Joint
Committee on Government and Finance.
??????????? Delegates Dean, Mr. Speaker (Mr.
Armstead), Atkinson, Baldwin, Brewer, Byrd, Capito, Cooper, Espinosa, E. Evans,
Ferro, Fleischauer, Folk, N. Foster, Harshbarger, Hicks, Hill, Hollen, Lane,
Lewis, Lovejoy, Lynch, Marcum, Martin, Maynard, McGeehan, O?Neal, Phillips,
Pyles, Queen, Rodighiero, Rohrbach, R. Romine, Rowan, Rowe, Statler, Storch,
Thompson, Wagner and Zatezalo offered the following resolution, which was read
by its title and referred to the Committee on Rules:
H. C. R. 141 ? ?Requesting
the Joint Committee on Government and Finance study policies ensuring that
nationally certified or licensed athletic trainers are available during
practices and games for all interscholastic student athletes in West Virginia.?
Whereas,
Sports-related injuries among interscholastic athletes are a public health
issue and current board of education policies only require trainers be present
at football games and practice; and
Whereas,
There are many benefits to participating in interscholastic sports including
enhanced awareness of healthy lifestyles, weight management, increased
self-esteem, and enhanced learning capacity; and
Whereas,
Students are more likely to face unnecessary injuries and tragic deaths when
appropriate health care professionals, such as licensed athletic trainers, are
not present; and
Whereas,
Licensed athletic trainers receive formal education and training in injury
prevention, first aid and emergency care, and rehabilitation of injuries and
can assist in reducing sports-related injuries and deaths in practices and
competitions; and
Whereas,
Several institutions of higher education located in West Virginia offer degrees
in athletic training; and
Whereas,
Athletic training is one of the fastest growing allied health care professions;
therefore, be it
Resolved by the Legislature of West Virginia:
That the
Legislature hereby requests the Joint Committee on Government and Finance to
study policies ensuring that nationally certified or licensed athletic trainers
are available during practices and games for all interscholastic student
athletes in West Virginia; and, be it
Further Resolved, That the
Joint Committee on Government and Finance report to the regular session of the
Legislature, 2018, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the
expenses necessary to conduct this study, to prepare a report and to draft
necessary legislation be paid from legislative appropriations to the Joint
Committee on Government and Finance.
Reordering of the Calendar
??????????? Delegate Cowles announced that the
Committee on Rules had transferred S. B. 25 and Com. Sub. for S. B. 219, on
Third Reading, House Calendar, to the Special Calendar.
Special Calendar
Unfinished Business
??????????? The following resolutions, coming up
in regular order, as unfinished business, were reported by the Clerk and
adopted:
??????????? H. C. R. 124,
Study relating to power generation facilities,
??????????? H. C. R. 125,
US Army SGT Benny Fleming Memorial Bridge,
??????????? And,
??????????? H.
C. R. 128, Study relating to maintenance and custodial work on state and
county buildings, facilities and equipment to be done under private contract.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Third Reading
??????????? S. B. 25,
Creating farm-to-food bank tax credit; on third reading, coming up in regular
order, was read a third time.
??????????? The
question being on the passage of the bill, the yeas and nays were taken (Roll No. 519), and there were--yeas
100, nays none, absent and not voting none.
??????????? So, a majority of the members present
and voting having voted in the affirmative, the Speaker declared the bill (S.
B. 25) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? Com. Sub. for S. B. 219, Relating to conspiracy to commit crimes under Uniform Controlled
Substances Act; on third reading, coming up in regular order, was read a third
time.
??????????? Delegate Fast asked unanimous
consent to amend the bill on third reading, which consent was not given,
objection being heard.
??????????? Delegate Fast then so moved.
??????????? On this motion, the yeas and nays were
taken (Roll No. 520), and there
were--yeas 11, nays 89, absent and not voting none, with the yeas being as
follows:
??????????? Yeas: Speaker Armstead, Arvon,
Butler, Fast, Frich, Hollen, Love, C. Miller, Pushkin, Sobonya and Ward.
??????????? So, two thirds of the members
present and voting not having voted in the affirmative, the motion was
rejected.
??????????? The question being on the passage of
the bill, the yeas and nays were taken (Roll
No. 521), and there were--yeas 91, nays 9, absent and not voting none, with
the nays being as follows:
??????????? Nays: Fast, Fleischauer, Folk,
Hornbuckle, McGeehan, Pushkin, Robinson, Rowe and Sponaugle.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 219) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.???????????
Motions
Delegate Cowles asked and obtained unanimous
consent that, for the remainder of the session, members of Conference
Committees be permitted to vote on any question or issue before the House which
they may have missed as a direct result of their duties on Conference
Committees, provided that such members notify the Clerk of the House in writing
before the Daily Journal is printed, how they wished to vote, and that any such
vote not change the outcome on any question.
Conference Committee
Report
Delegate
Zatezalo, from the Committee of Conference on matters of disagreement between
the two houses, as to
Com. Sub. for H. B. 2447,
Renaming the Court of Claims the state Claims Commission.
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 2447
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 amendment of the Senate to the bill striking out
everything after the enacting section, and that both houses agree to an
amendment as follows:
On
page nine, after section seventeen, article two, chapter fourteen, by adding a
new section, to read as follows:
?14-2-17a.? Shortened procedure
for road condition claims.
Notwithstanding
the regular and shortened procedures provided for in sections sixteen and
seventeen of this article, there shall be a shortened procedure for road
condition claims. The shortened procedure authorized by this section shall
apply only to a claim possessing all of the following characteristics:
(1) The
claim does not arise under an appropriation for the current fiscal year.
(2) The
claim alleges that a condition on the state?s highways or roads caused property
damage.
(3) The
Division of Highways concurs in the claim.
(4) The
amount claimed does not exceed $1,000.
The
Division of Highways shall prepare a stipulation concerning the claim and file
it with the clerk. The commission shall order the claim approved and shall file
its statement with the clerk.
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:
??????????? Com. Sub. for H. B. 2447 ? ?A Bill to repeal ?14-2-6
and ?14-2-18 of the Code of West Virginia, 1931, as amended; to repeal ?14-2A-7
of said code; to amend and reenact ?14-2-3, ?14-2-4, ?14-2-4a, ?14-2-5,
?14-2-7, ?14-2-8, ?14-2-9, ?14-2-10, ?14-2-11, ?14-2-12, ?14-2-13, ?14-2-14,
?14-2-15, ?14-2-16, ?14-2-17, ?14-2-19, ?14-2-20, ?14-2-21, ?14-2-22, ?14-2-23,
?14-2-24, ?14-2-25, ?14-2-26, ?14-2-27 and ?14-2-28 of said code; to amend said
code by adding thereto a new section, designated ?14-2-17a; and to amend and
reenact ?14-2A-5, ?14-2A-6, ?14-2A-9, ?14-2A-10, ?14-2A-11, ?14-2A-12,
?14-2A-13, ?14-2A-14, ?14-2A-15, ?14-2A-16, ?14-2A-17, 14-2A-18, ?14-2A-19,
?14-2A-19a, ?14-2A-19b, ?14-2A-20, ?14-2A-21, ?14-2A-25, ?14-2A-26 and
?14-2A-28 of said code, all relating to certain claims against the state
generally; renaming the West Virginia Court of Claims the West Virginia
Legislative Claims Commission; renaming judges commissioners; clarifying the
length of the existing terms for the current commissioners; clarifying that
commissioners are not judicial officers; modifying definitions; providing
explicit power of removal of commissioners to the President of the Senate and
the Speaker of the House of Delegates; providing authority to the President of
the Senate and the Speaker of the House of Delegates for the hiring of a clerk,
chief deputy clerk, deputy clerks, claim investigators, and support staff and
setting salaries for said positions; authorizing the President of the Senate
and Speaker of the House to permit commissioners serve more than one hundred
twenty days in any fiscal year; increasing the monetary limit for agency agreed
to claims from $1,000 to $3,000; and updating and modifying and clarifying
procedures and practices of the commission.?
??????????????????????????????????????????????????????????????????????? Respectfully
Submitted,
??????????? Mark Zatezalo, ?????????? ??????????????????????? ??????Ryan J. Weld,
??????????? John D. O?Neal, IV???????????? ???????????????? ??????Mark R. Maynard,
??????????? Rodney Miller, ??????????????????????????????????? ????? Glenn Jeffries,
????????????????? ?Conferees on the part????????????????????????????? Conferees on the part
??????????????????????? ?? of the House of Delegates.???? ??????????????? of
the Senate.
??????????? On motion of Delegate Zatezalo,
the report of the Committee of Conference was adopted.
The bill, as
amended by said report, was then put upon its passage.
??????????? On
the passage of the bill, the yeas and nays were taken (Roll No. 522), and there were--yeas 65, nays 34, absent and not
voting 1, with the nays and absent and not voting being as follows:
Nays:
Baldwin, Barrett, Bates, Boggs, Brewer, Byrd, Canestraro, Caputo, Diserio,
Eldridge, E. Evans, Ferro, Fleischauer, Fluharty, Hicks, Hornbuckle, Iaquinta,
Isner, Longstreth, Love, Lovejoy, Lynch, Marcum, Miley, Moye, Pethtel, Pushkin,
Pyles, Robinson, Rodighiero, Rowe, Sponaugle, Thompson and Williams.
Absent
and Not Voting: Kessinger.
So,
a majority of the members present and voting having voted in the affirmative,
the Speaker declared the bill (Com. Sub. for H. B. 2447) passed.
Ordered, That the Clerk of the
House communicate to the Senate the action of the House of Delegates and
request concurrence therein.
At 11:53 a.m.,
on motion of Delegate Cowles, the House of Delegates recessed until 1:00 p.m.
* * * * * * * *
Afternoon Session
* * * * * * * *
The House of Delegates was called to
order by the Honorable Tim Armstead, Speaker.
Messages from the Senate
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2083, Increasing the felony criminal penalties for exposing
children to methamphetamine manufacturing.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
?ARTICLE 10. METHAMPHETAMINE LABORATORY
ERADICATION ACT.
?60A-10-12. Exposure of
children to methamphetamine manufacturing; penalties.
??????????? (a) Any person eighteen years of age
or older who knowingly causes or permits a minor to be present in a location
where methamphetamine is manufactured or attempted to be manufactured is guilty
of a felony and, upon conviction thereof, shall be confined imprisoned
in a state correctional facility for not less than one two nor more than
five ten years, fined not more than $10,000, or both.
??????????? (b) Notwithstanding the provisions
of subsection (a) of this section, the penalty for a violation of said
subsection when the child suffers serious bodily injury as such is defined in
the provisions of section one, chapter eight-b of this code shall be confined
in a state correctional facility for not less than three nor more than fifteen
years, fined not more than twenty-five thousand dollars, or both any person
eighteen years of age or older who knowingly causes or permits a minor to be
present in a location where methamphetamine is manufactured or attempted to
be manufactured and the child thereby suffers serious bodily injury is
guilty of a felony and, upon conviction thereof, shall be imprisoned in
a state correctional facility for not less than three nor more than fifteen,
years, fined not more than $25,000, or both imprisoned and fined.
??????????? (c) As used in subsection (b) of
this section, ?serious bodily injury? shall have the same meaning as
this term is defined in section one, article eight-b, chapter sixty-one of this
code.??
??????????? And,
??????????? By amending the title of the bill to
read as follows:
??????????? Com. Sub. for H. B. 2083 ? ?A Bill to amend and reenact ?60A-10-12 of the
Code of West Virginia, 1931, as amended, relating to the Methamphetamine
Laboratory Eradication Act; increasing the felony criminal penalty for
knowingly causing or permitting a minor to be present in a location where
methamphetamine is manufactured or attempted to be manufactured; clarifying
that knowingly causing or permitting a minor to be present in a location where
methamphetamine is manufactured and thereby causing the minor serious bodily
injury is a separate, distinct offense; and clarifying the definition of
serious bodily injury.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 523),
and there were--yeas 96, nays 2, absent and not voting 2, with the nays and
absent and not voting being as follows:
??????????? Nays: Folk and McGeehan.
??????????? Absent and Not Voting: Kessinger and
Nelson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2083) passed.
??????????? Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2367, Establishing a criminal offense of organized retail
crime.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On
page one, by striking out everything after the enacting clause and inserting in
lieu thereof the following:
?That
the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated ?61-3A-7, to read as follows:
ARTICLE 3A. Shoplifting.
?61-3A-7.
Organized retail theft; offenses; penalties; cumulation; venue; forfeiture.
(a)
Any person who enters into a common scheme or plan with two or more other
persons to violate the provisions of section one of this article involving
merchandise of a cumulative value of $2,000 or more with the intent to sell,
trade or otherwise distribute the merchandise shall be guilty of a felony, and,
upon conviction, shall be imprisoned in a state correctional facility for a
determinate term of not less than one nor more than ten years or be fined not
less than $1,000 nor more than $10,000, or both imprisoned and fined.
(b)
Notwithstanding the provisions of subsection (a) of this section any person who
enters into a common scheme or plan with two or more other persons to violate
the provisions of section one of this article involving merchandise of a
cumulative value of $10,000 or more with the intent to sell, trade or otherwise
distribute the merchandise shall be guilty of a felony, and, upon conviction,
shall be imprisoned in a state correctional facility for a determinate term of
not less than two nor more than twenty years fined not less than $2,000 nor
more than $25,000, or both imprisoned and fined.
(c)
Any person who purchases, trades or barters for, or otherwise obtains with any
form of consideration, merchandise from persons he knows or has reason to
believe was obtained by three or more persons engaged in a common scheme or
plan to violate the provisions of section one of this article shall be guilty
of a felony.
(d)
Any person who violates the provisions of subsection (c) of this section by
purchasing, trading or bartering for merchandise with a cumulative value of
$2,000 or more shall, upon conviction, be imprisoned in a state correctional
facility for a determinate term of not less than one year, nor more than ten
years or fined not less than $1,000 nor more than $10,000, or both imprisoned
and fined.
(e)
Notwithstanding the provisions of subsection (d) of this section, any person
who violates the provisions of subsection (c) of this section by purchasing,
trading or bartering for merchandise with a cumulative value of $10,000 or more
shall, upon conviction, be imprisoned in a state correctional facility for a
determinate term of not less than two years, nor more than twenty years or
fined not less than $2,000 nor more than $25,000, or both imprisoned and fined.
(f)
In determining the value of merchandise in a prosecution under this section, it
is permissible to cumulate the value of merchandise obtained as part of a
common scheme or plan.
(g)
Violations of subsections (a), (b) and (c) of this section occurring in one or
more counties of this state may be prosecuted in any county wherein any part of
the offense was committed and the provisions of subsection (f) of this section
are applicable to offenses so occurring.
(h)(1) Any interest a person has acquired
or maintained in any cash, asset or other property of value in any form,
derived in part or total from any proceeds obtained from participating in a
violation of this section, may be seized and forfeited consistent with the
procedures in the West Virginia Contraband Forfeiture Act, as provided in
article seven, chapter sixty-a of this code.
(2)
Notwithstanding subdivision (1) of this subsection, at sentencing for a
violation of this section, the court may direct disgorgement to the victim or
victims of any cash, asset or other property of value
in any form, derived in part or total from any proceeds obtained from such
violation.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2367 ? ?A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section, designated
?61-3A-7, relating to establishing the offenses of organized retail theft and
knowing purchase of materials obtained by organized retail theft; establishing
elements of offenses; defining terms; establishing criminal penalties;
providing for the cumulation of merchandise values; providing for prosecution
in any county in which any part of an offense occurs; providing for seizure and
forfeiture of cash, assets or other property derived in part or total from any
proceeds from participating in a violation of the section; and authorizing a
sentencing court to order disgorgement of illegal gains.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 524),
and there were--yeas 95, nays 3, absent and not voting 2, with the nays and
absent and not voting being as follows:
??????????? Nays: Folk, McGeehan and Wilson.
??????????? Absent and Not Voting: Kessinger and
Nelson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2367) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect July 1, 2017, a bill
of the House of Delegates, as follows:
??????????? Com. Sub. for H. B. 2561, Relating to public school support.
??????????? On motion of Delegate Cowles, the House
of Delegates refused to concur in the following amendment of the bill by the Senate
and requested the Senate to recede therefrom:
??????????? On page one of the bill, by striking
out everything after the enacting clause and inserting in lieu thereof the
following:
?That ?11-6A-5a of the Code of West Virginia,
1931, as amended, be repealed; that ?11-8-6f and ?11-8-12 of said code be
amended and reenacted; that ?18-9A-2, ?18-9A-4, ?18-9A-5, ?18-9A-6a, ?18-9A-7,
?18-9A-9, ?18-9A-10 and ?18-9A-11 of said code be amended and reenacted; that
said code be amended by adding thereto a new section, designated ?18-9A-25;
that ?18-9D-2, ?18-9D-3, ?18-9D-4c and ?18-9D-16 of said code be amended and
reenacted; and that said code be amended by adding thereto two new sections,
designated ?18-9D-4d and ?18-9D-22,? all
to read as follows:
CHAPTER
11. TAXATION.
ARTICLE 8. LEVIES.
?11-8-6f. Regular school board levy
rate; creation and implementation of Growth County School Facilities Act; creation
of Growth County School Facilities Act Fund.
(a) Notwithstanding any other provision
of law, where any annual appraisal, triennial appraisal or general valuation of
property would produce a statewide aggregate assessment that would cause an
increase of two percent or more in the total property tax revenues that would
be realized were the then current regular levy rates of the county boards of
education to be imposed, the rate of levy for county boards of education shall
be reduced uniformly statewide and proportionately for all classes of property
for the forthcoming tax year so as to cause the rate of levy to produce no more
than one hundred two percent of the previous year?s projected statewide
aggregate property tax revenues from extending the county board of education
levy rate, unless subsection (b) of this section is complied with. The reduced
rates of levy shall be calculated in the following manner: (1) The total
assessed value of each class of property as it is defined by section five of this
article for the assessment period just concluded shall be reduced by deducting
the total assessed value of newly created properties not assessed in the
previous year?s tax book for each class of property; (2) the resulting net
assessed value of Class I property shall be multiplied by .01; the value of
Class II by .02; and the values of Classes III and IV, each by .04; (3) total
the current year?s property tax revenue resulting from regular levies for the
boards of education throughout this state and multiply the resulting sum by one
hundred two percent: Provided, That
the one hundred two percent figure shall be increased by the amount the boards
of education?s increased levy provided for in subsection (b), section eight,
article one-c of this chapter; (4) divide the total regular levy tax revenues,
thus increased in subdivision (3) of this subsection, by the total weighted net
assessed value as calculated in subdivision (2) of this subsection and multiply
the resulting product by one hundred; the resulting number is the Class I
regular levy rate, stated as cents-per-one hundred dollars of assessed value;
and (5) the Class II rate is two times the Class I rate; Classes III and IV,
four times the Class I rate as calculated in the preceding subdivision.
An additional appraisal or valuation due
to new construction or improvements, including beginning recovery of natural
resources, to existing real property or newly acquired personal property shall
not be an annual appraisal or general valuation within the meaning of this
section, nor shall the assessed value of the improvements be included in
calculating the new tax levy for purposes of this section. Special levies shall
not be included in any calculations under this section.
(b) After conducting a public hearing,
the Legislature may, by act, increase the rate above the reduced rate required
in subsection (a) of this section if an increase is determined to be necessary.
(a) Notwithstanding any other provision of
code to the contrary, for the 2017 tax year and thereafter, the regular levy
rates for county boards of education shall be the sum of the levy rates set
forth in subdivisions (1), (2) and (3), section six-c of this article for each
class of property, which are: (1) For Class I property, 22.95 cents per $100;
(2) for Class II property, 45.9 cents per $100; and (3) for Class III and Class
IV property, 91.8 cents per $100: Provided,
That, annually, county boards of education may decrease their regular levy
rates to no lower than the following rates: (1) For Class I property, 19.4
cents per $100; (2) for Class II property, 38.8 cents per $100; and (3) for
Class III and Class IV property, 77.6 cents per $100.
(c) (b) The
State Tax Commissioner shall report to the Joint Committee on Government and
Finance and the Legislative Oversight Commission on Education Accountability by
March 1 of each year on the progress of assessors in each county in assessing
properties at the constitutionally required sixty percent of market value and
the effects of increasing the limit on the increase in total property tax
revenues set forth in this section to two percent.
(d) (c)
Growth County School Facilities Act. ? Legislative findings. ?
The Legislature finds and declares that there has been, overall, a
statewide decline in enrollment in the public schools of this state; due to
this decline, most public schools have ample space for students, teachers and
administrators; however, some counties of this state have experienced
significant increases in enrollment due to significant growth in those
counties; that those counties experiencing significant increases do not have
adequate facilities to accommodate students, teachers and administrators.
Therefore, the Legislature finds that county boards of education in those
high-growth counties should have the authority to designate revenues generated
from the application of the regular school board levy due to new construction
or improvements placed in a Growth County School Facilities Act Fund be used
for school facilities in those counties to promote the best interests of this
state?s students.
(1) For the purposes of this subsection, ?growth county? means any
county that has experienced an increase in second month net enrollment of fifty
or more during any three of the last five years, as determined by the State
Department of Education.
(2) The provisions of this subsection shall only apply to any
growth county, as defined in subdivision (1) of this subsection, that, by
resolution of its county board of education, chooses to use the provisions of
this subsection.
(3) For any growth county, as defined in subdivision (1) of this
subsection, that adopts a resolution choosing to use the provisions of this
subsection, pursuant to subdivision (2) of this subsection, assessed values
resulting from additional appraisal or valuation due to new construction or
improvements to existing real property shall be designated as new property
values and identified by the county assessor. The statewide regular school board levy rate as established by the Legislature shall be applied to the assessed value designated as new property
values and the resulting property tax revenues collected from application of
the regular school board levy rate shall be placed in a separate account
designated as the Growth County School Facilities Act Fund. Revenues deposited
in the Growth County School Facilities Act Fund shall be appropriated by the
county board of education for construction, maintenance or repair of school
facilities. Revenues in the fund may be carried over for an indefinite length
of time and may be used as matching funds for the purpose of obtaining funds
from the School Building Authority or for the payment of bonded indebtedness
incurred for school facilities. For any growth county choosing to use the
provisions of this subsection, estimated school board revenues generated from
application of the regular school board levy rate to new property values are
not to be considered as local funds for purposes of the computation of local
share under the provisions of section eleven, article nine-a, chapter eighteen
of this code.
(e) (d) This section, as
amended during the legislative session in the year 2004, shall be effective as
to any regular levy rate imposed for the county boards of education for taxes
due and payable on or after July 1, 2004. If any provision of this section is
held invalid, the invalidity shall not affect other provisions or applications
of this section which can be given effect without the invalid provision or its
application and to this end the provisions of this section are declared to be
severable.
?11-8-12. Levy estimate by board of
education; certification and publication.
(a) Each board of education shall, at
the session provided for in section nine of this article, if the laying of a
levy has been authorized by the voters of the district under article nine,
chapter eighteen of this code, ascertain the condition of the fiscal affairs of
the district, and make a statement setting forth:
(1) The amount due, and the amount that will become due and
collectible during the current fiscal year except from the levy of taxes to be
made for the year;
(2) The interest, sinking fund and amortization requirements for
the fiscal year of bonded indebtedness legally incurred upon a vote of the
people, as provided by law, by any school district existing prior to May 22,
1933, before the adoption of the Tax Limitation Amendment;
(3) Other contractual indebtedness not bonded, legally incurred by
any such school district existing prior to May 22, 1933, before the adoption of
the Tax Limitation Amendment, owing by such district;
(4) The amount to be levied for the permanent improvement fund;
(5) The total of all other expenditures to be paid out of the
receipts for the current fiscal year, with proper allowance for delinquent
taxes, exonerations and contingencies;
(6) The amount of such total to be raised by the levy of taxes for
the current fiscal year;
(7) The proposed rate of levy in cents on each $100 assessed
valuation of each class of property;
(8) The separate and aggregate amounts of the assessed valuation
of real, personal and public utility property within each class.
(b) The secretary of the board shall
forward immediately a certified copy of the statement to the Auditor and shall
publish the statement immediately. The session shall then stand adjourned until
the third Tuesday in April, at which time it shall reconvene except where
otherwise permitted by section nine of this article: Provided, That no
provision of this section or section nine of this article may be construed to
abrogate any requirement imposed on the board of education by article nine-b,
chapter eighteen of this code.
(c) Notwithstanding any other provision of code to the contrary,
for the 2017 tax year only, at the session that is reconvened on the third
Tuesday in April, 2017, the county board may change its proposed regular levy
rates from the original proposed levy rates that were included in the statement
required by subsection (a) of this section.?
All other requirements pertaining to county boards of education
establishing their regular levy rates continue to apply including the
requirement for the State Auditor to approve the levy rate.
CHAPTER
18. EDUCATION.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
?18-9A-2. Definitions.
For the
purpose of this article:
(a) ?State
board? means the West Virginia Board of Education.
(b) ?County
board? or ?board? means a county board of education.
(c) ?Professional
salaries? means the state legally mandated salaries of the professional
educators as provided in article four, chapter eighteen-a of this code.
(d) ?Professional
educator? shall be is synonymous with and shall have has
the same meaning as ?teacher? as defined in section one, article one of this
chapter and includes technology integration specialists.
(e) ?Professional
instructional personnel? means a professional educator whose regular duty is as
that of a classroom teacher, librarian, attendance director or school
psychologist. A professional educator having both instructional and
administrative or other duties shall be included as professional instructional
personnel for that ratio of the school day for which he or she is assigned and
serves on a regular full-time basis in appropriate instruction, library,
attendance or psychologist duties.
(f) ?Professional
student support personnel? means a ?teacher? as defined in section one, article
one of this chapter who is assigned and serves on a regular full-time basis as
a counselor or as a school nurse with a bachelor?s degree and who is licensed
by the West Virginia Board of Examiners for Registered Professional Nurses. For
all purposes except for the determination of the allowance for professional
educators pursuant to section four of this article, professional student
support personnel are professional educators.
(g) ?Service
personnel salaries? means the state legally mandated salaries for service
personnel as provided in section eight-a, article four, chapter eighteen-a of
this code.
(h) ?Service
personnel? means all personnel as provided in section eight, article four,
chapter eighteen-a of this code. For the purpose of computations under this
article of ratios of service personnel to net enrollment, a service employee shall
be is counted as that number found by dividing his or her number of
employment days in a fiscal year by two hundred: Provided, That the
computation for any service person employed for three and one-half hours or
less per day as provided in section eight-a, article four, chapter eighteen-a
of this code shall be is calculated as one-half an employment
day.
(i) ?Net
enrollment? means the number of pupils enrolled in special education programs,
kindergarten programs and grades one to twelve, inclusive, of the public
schools of the county. Net enrollment further shall include:
(1)
Adults enrolled in regular secondary vocational programs existing as of the
effective date of this section, subject to the following:
(A) Net
enrollment includes no more than one thousand of those adults counted on the
basis of full-time equivalency and apportioned annually to each county in
proportion to the adults participating in regular secondary vocational programs
in the prior year counted on the basis of full-time equivalency; and
(B) Net
enrollment does not include any adult charged tuition or special fees beyond
that required of the regular secondary vocational student;
(2)
Students enrolled in early childhood education programs as provided in section
forty-four, article five of this chapter, counted on the basis of full-time
equivalency;
(3) No
pupil shall may be counted more than once by reason of transfer
within the county or from another county within the state, and no pupil shall
be counted who attends school in this state from another state;
(4) The
enrollment shall be modified to the equivalent of the instructional term and in
accordance with the eligibility requirements and rules established by the state
board; and
(5) For
the purposes of determining the county?s basic foundation program only, for any
county whose net enrollment as determined under all other provisions of this
definition is less than one thousand four hundred, the net enrollment of the
county shall be increased by an amount to be determined in accordance with the
following:
(A)
Divide the state?s lowest county student population density by the county?s
actual student population density;
(B)
Multiply the amount derived from the calculation in paragraph (A) of this
subdivision by the difference between one thousand four hundred and the county?s
actual net enrollment;
(C) If
the increase in net enrollment as determined under this subdivision plus the
county?s net enrollment as determined under all other provisions of this
subsection is greater than one thousand four hundred, the increase in net
enrollment shall be reduced so that the total does not exceed one thousand four
hundred; and
(D)
During the 2008-2009 interim period and every three interim periods thereafter,
the Legislative Oversight Commission on Education Accountability shall review
this subdivision to determine whether or not these provisions properly address
the needs of counties with low enrollment and a sparse population density
(j) ?Sparse-density
county? means a county whose ratio of net enrollment, excluding any increase in
the net enrollment of counties, pursuant to subdivision (5), subsection (i) of
this section, of the definition of ?net enrollment?, to the square miles of the
county is less than five.
(k) ?Low-density
county? means a county whose ratio of net enrollment, excluding any increase in
the net enrollment of counties, pursuant to subdivision (5), subsection (i) of
this section, of the definition of ?net enrollment?, to the square miles of the
county is equal to or greater than five but less than ten.
(l) ?Medium-density
county? means a county whose ratio of net enrollment, excluding any increase in
the net enrollment of counties, pursuant to subdivision (5), subsection (i) of
this section, of the definition of ?net enrollment?, to the square miles of the
county is equal to or greater than ten but less than twenty.
(m) ?High-density
county? means a county whose ratio of net enrollment, excluding any increase in
the net enrollment of counties, pursuant to subdivision (5), subsection (i) of
this section, of the definition of ?net enrollment?, to the square miles of the
county is equal to or greater than twenty.
(n) ?Levies
Maximum levies for general current expense purposes? means ninety
percent of the maximum levy rate for county boards of education calculated
or set by the Legislature pursuant to section six-f, as derived from the
sum of the levy rates in subdivisions (1), (2) and (3), section six-c,
article eight, chapter eleven of this code for each class of property.
(o) ?Technology
integration specialist? means a professional educator who has expertise in the
technology field and is assigned as a resource teacher to provide information
and guidance to classroom teachers on the integration of technology into the
curriculum.
(p) ?State
aid-eligible personnel? means all professional educators and service personnel
employed by a county board in positions that are eligible to be funded under
this article and whose salaries are not funded by a specific funding source
such as a federal or state grant, donation, contribution or other specific
funding source not listed.
?18-9A-4. Foundation allowance for professional educators.
(a) The
basic foundation allowance to the county for professional educators shall be
is the amount of money required to pay the state minimum salaries, in
accordance with provisions of article four, chapter eighteen-a of this code, to
the personnel employed, subject to the following:
(1) Subject
to subdivision (2) of this subsection, in In making this computation no
a county shall receive an allowance for the personnel which number is
in excess of professional educators state aid-eligible professional
educator positions to each one thousand students in net enrollment as
follows:
(A) For
each high-density county, the number of personnel for which a county shall
receive the allowance shall not exceed seventy-two and one tenth three
tenths professional educators per each one thousand students in net
enrollment;
(B) For
each medium-density county, the number of personnel for which a county shall
receive the allowance shall not exceed seventy-two and twenty-five forty-five
one hundredths professional educators per each one thousand students in net
enrollment;
(C) For
each low-density county, the number of personnel for which a county shall
receive the allowance shall not exceed seventy-two and four six
tenths professional educators per each one thousand students in net enrollment;
and
(D) For
each sparse-density county, the number of personnel for which a county shall
receive the allowance shall not exceed seventy-two and fifty-five seventy-five
one hundredths professional educators per each one thousand students in net
enrollment; and
(E) For
any professional educator positions, or fraction thereof, determined for a
county pursuant to paragraphs (A), (B), (C) and (D) of this subdivision that
exceed the number employed, the county?s allowance for these positions shall be
determined using the average state-funded salary of professional educators for
the county;
(2) For
the ratios applicable to each of the four density categories set forth in
subdivision (1) of this subsection, the number of professional educators per each
one thousand students in net enrollment increases by five one hundredths per
year for each of fiscal years 2010, 2011, 2012 and 2013. For each fiscal year
thereafter, the ratios remain at the 2013 level
(3) (2)
The number of and the allowance for personnel paid in part by state and county
funds shall be prorated; and
(4) (3)
Where two or more counties join together in support of a vocational or
comprehensive high school or any other program or service, the professional
educators for the school or program may be prorated among the participating
counties on the basis of each one?s enrollment therein and the personnel shall
be considered within the above-stated limit.
(b) Subject
to subsection (c) of this section each, Each county board shall
establish and maintain a minimum ratio of professional instructional personnel
per one thousand students in net enrollment state aid-funded
professional educators as follows:
(1) For
each high-density county, the minimum number ratio of
professional instructional personnel per one thousand students in net
enrollment is sixty-five and eight tenths state aid-funded professional
educators, or the number employed, whichever is less, is ninety-one and
twenty-nine one hundredths percent;
(2) For
each medium-density county, the minimum number ratio of
professional instructional personnel per one thousand students in net
enrollment is sixty-five and nine tenths state aid-funded professional
educators, or the number employed, whichever is less, is ninety-one and
twenty-four one hundredths percent;
(3) For
each low-density county, the minimum number ratio of professional
instructional personnel per one thousand students in net enrollment is
sixty-six state aid-funded professional educators, or the number
employed, whichever is less, is ninety-one and eighteen one hundredths percent;
(4) For
each sparse-density county, the minimum number ratio of
professional instructional personnel per one thousand students in net
enrollment is sixty-six and five one hundredths state aid-funded
professional educators, or the number employed, whichever is less, is
ninety-one and seven one hundredths percent; and
(5)
Where two or more counties join together in support of a vocational or
comprehensive high school or any other program or service, the professional
instructional personnel for the school or program may be prorated among the
participating counties on the basis of each one?s enrollment therein and the
personnel shall be considered within the above stated minimum ratios.
(c) For
the ratios applicable to each of the four density categories set forth in
subsection (b) of this subsection, the number of professional instructional
personnel per each one thousand students in net enrollment increases by five
one hundredths per year for each of fiscal years 2010, 2011, 2012 and 2013. For
each fiscal year thereafter, the ratios remain at the 2013 level
(d) (c)
Any county board which does not establish and maintain the applicable minimum
ratio required in subsection (b) of this section shall suffer a pro rata
reduction in the allowance for professional educators under this section: Provided,
That no a county shall may not be penalized if it
has increases in enrollment during that school year: Provided, however,
That for the school year 2008-2009, only, no county shall 2017-2018,
only, a county may not be penalized for not meeting the applicable minimum
ratio required in subsection (b) of this section.
(e) No (d)
A county shall may not increase the number of administrative
personnel employed as either professional educators or pay grade H service
personnel above the number which were employed, or for which positions were
posted, on June 30, 1990, and therefore, county boards shall whenever possible
utilize classroom teachers for curriculum administrative positions through the
use of modified or extended contracts.
(f) As
the number of professional educators per each one thousand students in net
enrollment increases during fiscal years 2009 through 2013, any additional
positions that are created as a result of that increase shall be positions that
will enhance student achievement and are consistent with the needs as
identified in each county board?s electronic county strategic improvement plan.
County boards are encouraged to fill at least some of the additional positions
with technology integration specialists.
(g)
During the 2008-2009 interim period, and every three interim periods
thereafter, the Legislative Oversight Commission on Education Accountability
shall review the four density categories created in section two of this
article, the ratios for professional educators established in this section and
the ratios for service personnel established in section five of this article
?18-9A-5. Foundation allowance for service personnel.
The
basic foundation allowance to the county for service personnel shall be is
the amount of money required to pay the annual state minimum salaries in
accordance with the provisions of article four, chapter eighteen-a of this
code, to such service personnel employed, subject to the following:
(1) For
the school year beginning on July 1, 2008, and thereafter, no A
county shall receive an allowance for an amount in excess of state
aid-eligible service personnel positions per one thousand students
in net enrollment, as follows:
(A) For
each high-density county, the number of personnel for which a county shall
receive the allowance shall not exceed forty-three and ninety-seven one
hundredths service personnel per one thousand students in net enrollment;
(B) For
each medium-density county, the number of personnel for which a county shall
receive the allowance shall not exceed forty-four and fifty-three one
hundredths service personnel per one thousand students in net enrollment;
(C) For
each low-density county, the number of personnel for which a county shall
receive the allowance shall not exceed forty-five and one tenth service
personnel per one thousand students in net enrollment; and
(D) For
each sparse-density county, the number of personnel for which a county shall
receive the allowance shall not exceed forty-five and sixty-eight one
hundredths service personnel per one thousand students in net enrollment; and
(E) For
any service personnel positions, or fraction thereof, determined for a county
pursuant to this subdivision that exceed the number employed, the county?s
allowance for these positions shall be determined using the average
state-funded minimum salary of service personnel for the county;
(2) The
number of and the allowance for personnel paid in part by state and county
funds shall be prorated; and
(2) (3)
Where two or more counties join together in support of a vocational or
comprehensive high school or any other program or service, the service
personnel for the school or program may be prorated among the participating
counties on the basis of each one?s enrollment therein and that the personnel
shall be considered within the above stated limit.
?18-9A-6a. Teachers Retirement Fund allowance; unfunded liability
allowance.
(a) The
total Teachers Retirement Fund allowance shall be is the sum of
the basic foundation allowance for professional educators, the basic
foundation allowance for professional student support personnel and the
basic foundation allowance for service personnel, as provided in sections four,
and five and eight of this article; all salary equity
appropriations authorized in section five, article four of chapter eighteen-a;
and such amounts as are to be paid by the counties pursuant to sections five-a
and five-b of said article to the extent such county salary supplements are
equal to the amount distributed for salary equity among the counties,
multiplied by fifteen percent the average retirement contribution
rate for each county board. The average contribution rate for each county board
is based on the required employer contributions for state aid-eligible
employees participating in the retirement plans pursuant to articles seven-a
and seven-b of this chapter.
(b) The
Teachers Retirement Fund allowance amounts provided for in subsection (a) of
this section shall be accumulated in the Employers Accumulation Fund of the
state Teachers Retirement System pursuant to section eighteen, article seven-a
of this chapter, and shall be in lieu of the contribution required of employers
pursuant to subsection (b) of said section as to all personnel included in the
allowance for state aid in accordance with sections four, and
five and eight of this article.
(c) In
addition to the Teachers Retirement Fund allowance provided for in subsection
(a) of this section, there shall be an allowance for the reduction of any
unfunded liability of the Teachers Retirement Fund in accordance with the
following provisions of this subsection. On or before December 31, of each
year, the actuary or actuarial firm employed in accordance with the provisions
of section four, article ten-d, chapter five of this code shall submit a report
to the President of the Senate and the Speaker of the House of Delegates which
sets forth an actuarial valuation of the Teachers Retirement Fund as of the
preceding the thirtieth day of June 30. Each annual report shall
recommend the actuary?s best estimate, at that time, of the funding necessary
to both eliminate the unfunded liability over a forty-year period beginning on the
first day of July, one thousand nine hundred ninety-four July 1, 1994, and
to meet the cash flow requirements of the fund in fulfilling its future
anticipated obligations to its members. In determining the amount of funding
required, the actuary shall take into consideration all funding otherwise
available to the fund for that year from any source: Provided, That the
appropriation and allocation to the Teachers Retirement Fund made pursuant to
the provisions of section six-b of this article shall be included in the
determination of the requisite funding amount. In any year in which the actuary
determines that the Teachers Retirement Fund is not being funded in such a
manner, the allowance made for the unfunded liability for the next fiscal year
shall be not less than the amount of the actuary?s best estimate of the amount
necessary to conform to the funding requirements set forth in this subsection.
?18-9A-7. Foundation allowance for transportation cost.
(a) The
allowance in the foundation school program for each county for transportation shall
be is the sum of the following computations:
(1) A
percentage of the transportation costs incurred by the county for maintenance,
operation and related costs exclusive of all salaries, including the costs
incurred for contracted transportation services and public utility
transportation, as follows:
(A) For
each high-density county, eighty-seven and one-half percent;
(B) For
each medium-density county, ninety percent;
(C) For
each low-density county, ninety-two and one-half percent;
(D) For
each sparse-density county, ninety-five percent;
(E) For
any county for the transportation cost for maintenance, operation and related
costs, exclusive of all salaries, for transporting students to and from classes
at a multicounty vocational center, the percentage provided in paragraphs (A)
through (D), inclusive, of this subdivision as applicable for the county plus
an additional ten percent; and
(F) For
any county for that portion of its school bus system that uses as an
alternative fuel compressed natural gas or propane, the percentage provided in
paragraphs (A) through (D), inclusive, of this subdivision as applicable for
the county plus an additional ten percent: Provided, That for any county
receiving an additional ten percent for that portion of their bus system using
bio-diesel as an alternative fuel during the school year 2012-2013, bio-diesel
shall continue to qualify as an alternative fuel under this paragraph to the
extent that the additional percentage applicable to that portion of the bus
system using bio-diesel shall be decreased by two and one-half percent per year
for four consecutive school years beginning in school year 2014-2015: Provided,
however, That any county using an alternative fuel and qualifying for the
additional allowance under this subdivision shall submit a plan regarding the
intended future use of alternatively fueled school buses;
(2) The
total cost, within each county, of insurance premiums on buses, buildings and
equipment used in transportation;
(3) An
amount equal to eight and one-third percent of the current replacement value of
the bus fleet within each county as determined by the state board. Provided,
That the amount for the school year beginning July 1, 2015, will be $15,000,000
and the amount for the school year beginning July 1, 2016, will be $18,000,000.
The amount shall only be used for the replacement of buses except as
provided in subdivision (4) of this subsection. Buses purchased after July
1, 1999 that are driven one hundred eighty thousand miles, regardless of year
model, will be are subject to the replacement value of eight and
one-third percent as determined by the state board. In addition, in any school
year in which its net enrollment increases when compared to the net enrollment
the year immediately preceding, a school district may apply to the state
superintendent for funding for an additional bus or buses. The state
superintendent shall make a decision regarding each application based upon an
analysis of the individual school district's net enrollment history
and transportation needs: Provided, That the superintendent shall
may not consider any application which fails to document that the county
has applied for federal funding for additional buses. If the state
superintendent finds that a need exists, a request for funding shall be
included in the budget request submitted by the state board for the upcoming
fiscal year;
(4)
Notwithstanding the restriction on the use of funds for the replacement of
buses pursuant to subdivision (3) of this subsection, up to $200,000 of these
funds in any school year may be used by a county for school facility and
equipment repair, maintenance and improvement or replacement or other current
expense priorities if a request by the county superintendent listing the
amount, the intended use of the funds and the serviceability of the bus fleet
is approved by the state superintendent. Before approving the request, the
state superintendent shall verify the serviceability of the county?s bus fleet
based upon the state school bus inspection defect rate of the county over the
two prior years; and
(4) (5)
Aid in lieu of transportation equal to the state average amount per pupil for
each pupil receiving the aid within each county.
(b) The
total state share for this purpose is the sum of the county shares: Provided,
That no a county shall may not receive an allowance
which is greater than one-third above the computed state average allowance per
transportation mile multiplied by the total transportation mileage in the
county exclusive of the allowance for the purchase of additional buses.
(c) One
half of one percent of the transportation allowance distributed to each county shall
be is for the purpose of trips related to academic classroom
curriculum and not related to any extracurricular activity. Any remaining funds
credited to a county for the purpose of trips related to academic classroom
curriculum during the fiscal year shall be carried over for use in the same
manner the next fiscal year and shall be separate and apart from, and in
addition to, the appropriation for the next fiscal year. The state board may
request a county to document the use of funds for trips related to academic
classroom curriculum if the board determines that it is necessary.
?18-9A-9. Foundation allowance for other current expense and
substitute employees and faculty senates.
The
total allowance for other current expense and substitute employees shall be
is the sum of the following:
(1) For
current expense, ten percent of the sum of the computed state allocation for
professional educators, professional student support personnel and service
personnel as determined in sections four, five and eight of this article.
Distribution to the counties shall be made proportional to the average of each
county's average daily attendance for the preceding year and the county's second
month net enrollment; plus
(1) For
current expense:
(A) The
nonsalary-related expenditures for operations and maintenance, exclusive of
expenditures reported in special revenue funds, for the latest available school
year, in each county, divided by the total square footage of school buildings
in each county is used to calculate a state average expenditure per square foot
for operations and maintenance;
(B) The
total square footage of school buildings in each county divided by each county?s
net enrollment for school aid purposes is used to calculate a state average
square footage per student;
(C) Each
county?s net enrollment for school aid purposes multiplied by the state average
expenditure per square foot for operations and maintenance as calculated in
paragraph (A) of this subdivision and multiplied by the state average square
footage per student as calculated in paragraph (B) of this subdivision is that
county?s state average costs per square footage per student for operations and
maintenance;
(D)
Where two or more counties join together in support of a vocational or
comprehensive high school or any other program or service, the allowance for
current expense may be prorated among the participating counties by adjusting
the net enrollment for school aid purposes utilized in the calculation by the
number of students enrolled therein for each county; and
(E) Each
county?s allowance for current expense is 70.25 percent of the county?s state
average costs per square footage per student for operations and maintenance amount
as calculated in paragraph (C) of this subdivision; plus
(2) For
professional educator substitutes or current expense, two and five-tenths
percent of the computed state allocation for professional educators and
professional student support personnel as determined in sections four and eight
of this article. Distribution to the counties shall be is made
proportional to the number of professional educators and professional student
support personnel authorized for the county in compliance with sections four
and eight of this article; plus
(3) For
service personnel substitutes or current expense, two and five-tenths percent
of the computed state allocation for service personnel as determined in section
five of this article. Distribution to the counties shall be is
made proportional to the number of service personnel authorized for the county
in compliance with said section; plus
(4) For
academic materials, supplies and equipment for use in instructional programs,
$200 multiplied by the number of professional instructional personnel and
professional student support personnel employed in the schools of the county.
Distribution shall be is made to each county for allocation to
the faculty senate of each school in the county on the basis of $200 per
professional instructional personnel employed at the school. ?Faculty senate?
means a faculty senate created pursuant to section five, article five-a of this
chapter. Decisions for the expenditure of such funds shall be are
made at the school level by the faculty senate in accordance with the
provisions of said section and shall may not be used to supplant
the current expense expenditures of the county. Beginning on September 1, 1994,
and every September thereafter, county boards shall forward to each school for
the use by faculty senates the appropriation specified in this section. Each
school shall be responsible for keeping accurate records of expenditures.
?18-9A-10. Foundation allowance to improve instructional programs and
instructional technology.
(a) The
total allowance to improve instructional programs shall be and
instructional technology is the sum of the following:
(1) For
instructional improvement, in accordance with county and school electronic
strategic improvement plans required by section five, article two-e of this
chapter, an amount equal to ten percent of the portion of the increase
in the local share amount for the next school year that is due to an
increase in assessed values only above any required allocation pursuant to
section six-b of this article shall be added to the amount of the appropriation
for this purpose for the immediately preceding school year. The sum of these
amounts shall be distributed allocated to the counties as
follows:
(A) One
hundred fifty thousand dollars shall be allocated to each county; and
(B) Distribution
Allocation to the counties of the remainder of these funds shall be made
proportional to the average of each county's average daily attendance
for the preceding year and the county's second month net enrollment.
Moneys
allocated by provision of this subdivision shall be used to improve
instructional programs according to the county and school strategic improvement
plans required by section five, article two-e of this chapter and approved by
the state board. Provided, That notwithstanding any other
provision of this code to the contrary, moneys allocated by provision of this
section also may be used in the implementation and maintenance of the uniform
integrated regional computer information system.
Up to twenty-five
fifty percent of this allocation for the improvement of instructional
programs may be used to employ
professional educators and service personnel in counties after all
applicable provisions of sections four and five of this article have been fully
utilized the county. Prior to the use of any funds from this
subdivision for personnel costs, the county board must receive authorization
from the state superintendent. The state superintendent shall require the
county board to demonstrate: (1) The need for the allocation; (2) efficiency
and fiscal responsibility in staffing; (3) sharing of services with adjoining
counties and the Regional educational Education Service Agency
for that county in the use of the total local district board budget; and (4)
employment of technology integration specialists to meet the needs for
implementation of the West Virginia Strategic Technology Learning Plan. County
boards shall make application for the use of funds for personnel for the next
fiscal year by May 1 of each year. On or before June 1, the state
superintendent shall review all applications and notify applying county boards
of the approval or disapproval of the use of funds for personnel during the
fiscal year appropriate. The state superintendent shall require the county
board to demonstrate the need for an allocation for personnel based upon the
county's inability to meet the requirements of state law or state board
policy.
The
provisions relating to the use of any funds from this subdivision for personnel
costs are subject to the following: (1) The funds available for
personnel under this subsection subdivision may not be used to
increase the total number of professional noninstructional personnel in the
central office beyond four.? and (2)
For the school year beginning July 1, 2013, and thereafter, any funds available
to a county for use for personnel under this subsection above the amount
available for the 2012-2013 school year, only may be used for technology
systems specialists until the state superintendent determines that the county
has sufficient technology systems specialists to serve the needs of the county.
The plan
shall be made available for distribution to the public at the office of each
affected county board; plus
(2) For
the purposes of improving instructional technology, an amount equal to twenty
percent of the portion of the increase in the local share amount for the
next school year that is due to an increase in assessed values only
above any required allocation pursuant to section six-b of this article shall
be added to the amount of the appropriation for this purpose for the
immediately preceding school year. The sum of these amounts shall be distributed
allocated to the counties as follows:
(A)
Thirty thousand dollars shall be allocated to each county; and
(B) Distribution
Allocation to the counties of the remainder of these funds shall be made
proportional to the average of each county's average daily attendance
for the preceding year and the county's second month net enrollment.
Effective
July 1, 2014, Moneys allocated by provision of this subdivision shall be
used to improve instructional technology programs according to the county and
school strategic improvement plans board?s strategic technology learning
plan. plus
This
allocation for the improvement of instructional technology programs may also be
used for the employment of technology system specialists essential for the
technology systems of the schools of the county to be fully functional and
readily available when needed by classroom teachers.? The amount of this allocation used for the
employment of technology system specialists shall be included and justified in
the county board?s strategic technology learning plan; plus
(3) One
percent of the state average per pupil state aid multiplied by the number of
students enrolled in dual credit, advanced placement and international
baccalaureate courses, as defined by the state board, distributed to the
counties proportionate to enrollment in these courses in each county; plus
(4) An
amount not less than the amount required to meet debt service requirements on
any revenue bonds issued prior to January 1, 1994, and the debt service
requirements on any revenue bonds issued for the purpose of refunding revenue
bonds issued prior to January 1, 1994, shall be paid by the West Virginia
Department of Education in accordance with the expenditure schedule approved by
the state budget office into the School Building Capital Improvements Fund
created by section six, article nine-d of this chapter and shall be used solely
for the purposes of that article. The School Building Capital Improvements Fund
shall not be utilized to meet the debt services requirement on any revenue
bonds or revenue refunding bonds for which moneys contained within the School
Building Debt Service Fund have been pledged for repayment pursuant to that
section.
(b)
Notwithstanding the restrictions on the use of funds pursuant to subdivisions
(1) and (2), subsection (a) of this section, a county board may:
(1)
Utilize up to twenty-five percent of the allocation for the improvement of
instructional programs in any school year for school facility and equipment
repair, maintenance and improvement or replacement and other current expense
priorities and for emergency purposes. The amount of this allocation used for any
of these purposes shall be included and justified in the county and school
strategic improvement plans or amendments thereto; and
(2)
Utilize up to fifty percent of the allocation for improving instructional
technology in any school year for school facility and equipment repair,
maintenance and improvement or replacement and other current expense priorities
and for emergency purposes. The amount of this allocation used for any of these
purposes shall be included and justified in the county board?s strategic
technology learning plan or amendments thereto.
(b) (c)
When the school improvement bonds secured by funds from the School Building
Capital Improvements Fund mature, the State Board of Education shall annually
deposit an amount equal to $24 million from the funds allocated in this section
into the School Construction Fund created pursuant to the provisions of section
six, article nine-d of this chapter to continue funding school facility
construction and improvements.
(c) (d)
Any project funded by the School Building Authority shall be in accordance with
a comprehensive educational facility plan which must be approved by the state
board and the School Building Authority.
?18‑9A‑11. Computation
of local share; appraisal and assessment of property; valuations for tax
increment financing purposes; computations in growth counties; 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 articles one‑c and three of said chapter, the
state board shall for each county compute by application of the maximum
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) For
each fiscal year beginning before July 1, 2014, 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. For each fiscal year beginning after June 30, 2014, the The state board shall first take ninety‑six 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) For
each fiscal year beginning before July 1, 2014, 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. For each
fiscal year beginning after June 30, 2014, the 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 four 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
or ninety‑six percent as applicable, 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 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) It is the intent of the Legislature that the computation of
local share for public school support continue to be based upon actual real
property values rather than assumed assessed real property values that are
based upon an assessment ratio study, and that the annual amount of local share
for which a county board of education is responsible continue to be computed
without reference to whether the real property assessments in that county were
at least fifty‑four percent of market value in the prior year as
indicated by the assessment ratio study. Accordingly, the effective date of the
operation of this section as amended and reenacted during 2014, and the
effective date of the operation of the repeal of section two‑a of this
article and the operation of the repeal of section five‑b, article one‑c,
chapter eleven of this code, all as provided under this enactment, are
expressly made retrospective to June 30, 2013.
(c) Whenever in any year a county assessor or a county commission
fails or refuses to comply with 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 comply with the requirements of chapter
eleven of this code and this section and the Tax Commissioner may 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 this
section, in any taxing unit in which tax increment financing is in effect
pursuant to 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 this
section, in any county where the county board of education has adopted a
resolution choosing to use 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 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. 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. Therefore, county boards are encouraged to
support public libraries within their counties.
?18-9A-25.? Effective date of changes during 2017 regular
session of the Legislature.
The amendments to sections two, four, five,
six-a, seven, nine, ten and eleven of this article during the 2017 regular
session of the Legislature shall be effective for the calculations and
distribution of state aid for the 2018 fiscal year and thereafter; and the
provisions in place before those amendments are only effective for the
calculations and distribution of state aid prior to the 2018 fiscal year.
ARTICLE 9D.?
SCHOOL BUILDING AUTHORITY.
?18-9D-2.? Definitions.
For the purposes of this article, unless a
different meaning clearly appears from the context:
(1) ?Authority? means the School Building
Authority of West Virginia;
(2) ?Bonds? means bonds issued by the authority
pursuant to this article;
(3) ?Construction project? means a project in
the furtherance of a facilities plan with a cost greater than $1 million for
the new construction, expansion or major renovation of facilities, buildings
and structures for school purposes, including:
(A) The acquisition of land for current or
future use in connection with the construction project;
(B) New or substantial upgrading of existing
equipment, machinery and furnishings;
(C) Installation of utilities and other similar
items related to making the construction project operational.
(D) Construction project does not include such
items as books, computers or equipment used for instructional purposes; fuel;
supplies; routine utility services fees; routine maintenance costs; ordinary
course of business improvements; other items which are customarily considered
to result in a current or ordinary course of business operating charge or a
major improvement project;
(4) ?Cost of project? means the cost of
construction, expansion, renovation, repair and safety upgrading of facilities,
buildings and structures for school purposes; the cost of land, equipment,
machinery, furnishings, installation of utilities and other similar items
related to making the project operational; and the cost of financing, interest
during construction, professional service fees and all other charges or
expenses necessary, appurtenant or incidental to the foregoing, including the
cost of administration of this article;
(5) ?County board? or ?county? means a
county board of education as provided in article five of this chapter and
includes the West Virginia Schools for the Deaf and the Blind as provided in
article seventeen of this chapter when acting with the approval of the West
Virginia Board of Education to submit, request and receive an award of funds or
services for projects under the provisions of this article.
(5) (6) ?Facilities
plan? means the ten-year countywide comprehensive educational facilities plan
established by a county board in accordance with guidelines adopted by the
authority to meet the goals and objectives of this article, or a facilities
plan established by the administration of the West Virginia Schools for the
Deaf and Blind that:
(A) Addresses the existing school
facilities and facility needs of the county, or the Schools for the Deaf and
Blind, to provide a thorough and efficient education in accordance with the
provisions of this code and policies of the state board;
(B) Best serves the needs of individual
students, the general school population and the communities served by the
facilities, including, but not limited to, providing for a facility
infrastructure that avoids excessive school bus transportation times for
students consistent with sound educational policy and within the budgetary
constraints for staffing and operating the schools of the county;
(C) Includes the school major improvement plan;
(D) Includes the county board?s school access
safety plan required by section three, article nine-f of this chapter;
(E) Is updated annually to reflect projects
completed, current enrollment projections and new or continuing needs; and
(F) Is approved by the state board and the
authority prior to the distribution of state funds pursuant to this article to
any county board or other entity applying for funds;
(6) (7) ?Project?
means a construction project or a major improvement project;
(7) (8) ?Region?
means the area encompassed within and serviced by a regional educational
service agency established pursuant to section twenty-six, article two of this
chapter;
(8) (9) ?Revenue?
or ?revenues? means moneys:
(A) Deposited in the School Building Capital
Improvements Fund pursuant to section ten, article nine-a of this chapter;
(B) Deposited in the School Construction Fund
pursuant to section thirty, article fifteen, chapter eleven of this code and
section eighteen, article twenty-two, chapter twenty-nine of this code;
(C) Deposited in the School Building Debt
Service Fund pursuant to section eighteen, article twenty-two, chapter
twenty-nine of this code;
(D) Deposited in the School Major Improvement
Fund pursuant to section thirty, article fifteen, chapter eleven of this code;
(E) Received, directly or indirectly, from any
source for use in any project completed pursuant to this article;
(F) Received by the authority for the purposes
of this article; 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;.
(9) (10) ?School
major improvement plan? means a ten-year school maintenance plan that:
(A) Is prepared by a county board in accordance
with the guidelines established by the authority and incorporated in its
Countywide Comprehensive Educational Facilities Plan, or is prepared by the
state board or the administrative council of an area vocational educational
center in accordance with the guidelines if the entities seek funding from the
authority for a major improvement project, or is prepared by the
administration of the West Virginia Schools for the Deaf and Blind;
(B) Addresses the regularly scheduled
maintenance for all school facilities of the county or under the jurisdiction
of the entity seeking funding;
(C) Includes a projected repair and replacement
schedule for all school facilities of the county or of the entity
seeking funding;
(D) Addresses the major improvement needs of
each school within the county or under the jurisdiction of the entity seeking
funding; and
(E) Is required prior to the distribution of
state funds for a major improvement project pursuant to this article to the
county board, state board or administrative council; and
(10) (11) ?School
major improvement project? means a project with a cost greater than $50
thousand and less than $1 million for the renovation, expansion, repair and
safety upgrading of existing school facilities, buildings and structures,
including the substantial repair or upgrading of equipment, machinery, building
systems, utilities and other similar items related to the renovation, repair or
upgrading in the furtherance of a school major improvement plan.? A major improvement project does not include
such items as books, computers or equipment used for instructional purposes;
fuel; supplies; routine utility services fees; routine maintenance costs;
ordinary course of business improvements; or other items which are customarily
considered to result in a current or ordinary course of business operating
charge.;
(12) ?Schools for the Deaf and Blind? or ?West
Virginia Schools for the Deaf and Blind? means the Schools for the Deaf and
Blind established or continued under article seventeen of this chapter.
?18-9D-3.? Powers of authority.
The School Building Authority has the power:
(1) To sue and be sued, plead and be impleaded;
(2) To have a seal and alter the same at
pleasure;
(3) To contract to acquire and to acquire, in
the name of the authority, by purchase, lease-purchase not to exceed a term of
twenty-five years, or otherwise, real property or rights or easements necessary
or convenient for its corporate purposes and to exercise the power of eminent
domain to accomplish those purposes;
(4) To acquire, hold and dispose of real and
personal property for its corporate purposes;
(5) To make bylaws for the management and rule
of its affairs;
(6) To appoint, contract with and employ
attorneys, bond counsel, accountants, construction and financial experts,
underwriters, financial advisers, trustees, managers, officers and such other
employees and agents as may be necessary in the judgment of the authority and
to fix their compensation:? Provided,
That contracts entered into by the School Building Authority in connection with
the issuance of bonds under this article to provide professional and technical
services, including, without limitation, accounting, actuarial, underwriting,
consulting, trustee, bond counsel, legal services and contracts relating to the
purchase or sale of bonds are subject to the provisions of article three,
chapter five-a of this code: Provided, however, That notwithstanding any
other provisions of this code, any authority of the Attorney General of this
state relating to the review of contracts and other documents to effectuate the
issuance of bonds under this article shall be exclusively limited to the form
of the contract and document:? Provided
further, That the Attorney General of this state shall complete all reviews
of contracts and documents relating to the issuance of bonds under this article
within ten calendar days of receipt of the contract and document for review;
(7) To make contracts and to execute all
instruments necessary or convenient to effectuate the intent of and to exercise
the powers granted to it by this article;
(8) To renegotiate all contracts entered into
by it whenever, due to a change in situation, it appears to the authority that
its interests will be best served;
(9) To acquire by purchase, eminent domain or
otherwise all real property or interests in the property necessary or
convenient to accomplish the purposes of this article;
(10) To require proper maintenance and
insurance of any project authorized under this section, including flood
insurance for any facility within the one hundred year flood plain, at which
authority funds are expended;
(11) To charge rent for the use of all or any
part of a project or buildings at any time financed, constructed, acquired or
improved, in whole or in part, with the revenues of the authority;
(12) To assist the West Virginia Schools for
the Deaf and Blind or any county board of education that chooses to acquire
land, buildings and capital improvements to existing school buildings and
property for use as public school facilities, by lease from a private or public
lessor for a term not to exceed twenty-five years with an option to purchase
pursuant to an investment contract with the lessor on such terms and conditions
as may be determined to be in the best interests of the authority, the State
Board of Education and, if applicable, the county board of education,
consistent with the purposes of this article, by transferring funds to the
State Board of Education as provided in subsection (d), section fifteen of this
article for the use of the county board of education;
(13) To accept and expend any gift, grant,
contribution, bequest or endowment of money and equipment to, or for the
benefit of, the authority or any project under this article, from the State of
West Virginia or any other source for any or all of the purposes specified in
this article or for any one or more of such purposes as may be specified in
connection with the gift, grant, contribution, bequest or endowment;
(14) To enter on any lands and premises for the
purpose of making surveys, soundings and examinations;
(15) To contract for architectural, engineering
or other professional services considered necessary or economical by the
authority to provide consultative or other services to the authority or to any
regional educational service agency, the West Virginia Schools for the Deaf
and Blind or? any county board
requesting professional services offered by the authority, to evaluate any
facilities plan or any project encompassed in the plan, to inspect existing
facilities or any project that has received or may receive funding from the
authority or to perform any other service considered by the authority to be
necessary or economical.? Assistance to
the region, school or district may include the development of
preapproved systems, plans, designs, models or documents; advice or oversight
on any plan or project; or any other service that may be efficiently provided by
the authority to regional educational service agencies, the state board,
or county boards by the authority or the West Virginia Schools
for the Deaf and Blind;
(16) To provide funds on an emergency basis to
repair or replace property damaged by fire, flood, wind, storm, earthquake or
other natural occurrence, the funds to be made available in accordance with
guidelines of the School Building Authority;
(17) To transfer moneys to custodial accounts
maintained by the School Building Authority with a state financial institution
from the school construction fund and the school improvement fund created in
the State Treasury pursuant to the provisions of section six of this article,
as necessary to the performance of any contracts executed by the School
Building Authority in accordance with the provisions of this article;
(18) To enter into agreements with county
boards and persons, firms or corporations to facilitate the development of county
board projects and county board facilities plans.? The county board participating in an
agreement shall pay at least twenty-five percent of the cost of the
agreement.? Nothing in this section shall
be construed to supersede, limit or impair supersedes, limits or impairs
the authority of county boards to develop and prepare their projects or plans;
(19) To encourage any project or part thereof
to provide opportunities for students to participate in supervised, unpaid
work-based learning experiences related to the student?s program of study
approved by the county board or the administration of the West Virginia
Schools for the Deaf and Blind.? The
work-based learning experience must shall be conducted in
accordance with a formal training plan approved by the instructor, the employer
and the student. and which sets The experience shall set
forth at a minimum the specific skills to be learned, the required
documentation of work-based learning experiences, the conditions of the
placement, including duration and safety provisions, and provisions for
supervision and liability insurance coverage as applicable.? Projects involving the new construction and
renovation of vocational-technical and adult education facilities should
provide opportunities for students to participate in supervised work-based
learning experiences, to the extent practical, which meet the requirements of
this subdivision.? Nothing in this
subdivision may be construed to affect registered youth apprenticeship programs
or the provisions governing those programs; and
(20) To do all things necessary or convenient
to carry out the powers given in this article.
?18-9D-4c.? School Building
Authority authorized to temporarily finance projects through the issuance of
loans, notes or other evidences of indebtedness.
The School Building
Authority may by resolution, in accordance with the provisions of this article,
temporarily finance the cost of projects and other expenditures permitted under
this article for public schools in this state, including, but not
limited to, comprehensive high schools, and comprehensive middle schools
as defined in this article, in this state through the issuance of and
the West Virginia Schools for the Deaf and Blind.? The financing may be issued through
loans, notes or other evidences of indebtedness,? Provided, That the outstanding
principal amount of loans, notes or other evidences of indebtedness
outstanding at any one time shall which may not exceed $16 million at
any one time. Provided, however, That The principal
of, interest and premium if any on, and fees associated with any such
temporary financing shall be payable solely from the proceeds of bonds or
the sources from which the principal of, interest and premium, if any,
on bonds is any bonds are payable under this article. or from the
proceeds of bonds
?18-9D-4d. Emergency facility and equipment repair or
replacement fund for financially distressed counties.
From
the funds available to it the School Building Authority shall maintain a
reserve fund in the amount of not less than $600,000 for the purpose of making
emergency grants to financially distressed county boards to assist them in
making repairs or performing urgent maintenance to facilities or facility
related equipment or facility related equipment replacement necessary to
maintain the serviceability or structural integrity of school facilities
currently in use or necessary for educating the students of the county.? The grants shall be made in accordance with
guideline established by the school building authority.? For the purposes of this section, ?financially
distressed county? means a county either in deficit or on the most recently
established watch list established by the Department of Education of those
counties at-risk of becoming in deficit.
?18-9D-16.? Authority to
establish guidelines and procedures for facilities and major improvement plans;
guidelines for modifications and updates, etc.; guidelines for project
evaluation; submission of certified list of projects to be funded; department
on-site inspection of facilities; enforcement of required changes or additions
to project plans.
(a) The authority shall establish guidelines
and procedures to promote the intent and purposes of this article and assure
the prudent and resourceful expenditure of state funds for projects under this
article including, but not limited to, the following:
(1) Guidelines and procedures for the
facilities plans, school major improvement plans and projects submitted in the
furtherance of the plans that address, but are not limited to, the following:
(A) All of the elements of the respective plans
as defined in section two of this article;
(B) The procedures for a county or the
administration of the West Virginia Schools for the Deaf and Blind to
submit a preliminary plan, a plan outline or a proposal for a plan to the
authority prior to the submission of the facilities plan.? The preliminary plan, plan outline or
proposal for a plan shall be the basis for a consultation meeting between
representatives of the county or the administration of the West Virginia
Schools for the Deaf and Blind and members of the authority, including at
least one citizen member. which The meeting shall be held
promptly following submission of the preliminary plan, plan outline or proposal
for a plan to assure understanding of the general goals of this article and the
objective criteria by which projects will be evaluated, to discuss ways the
plan may be structured to meet those goals, and to assure efficiency and
productivity in the project approval process;
(C) The manner, time line and process for the
submission of each plan and annual plan updates to the authority;
(D) The requirements for public hearings,
comments or other means of providing broad-based input on plans and projects
under this article within a reasonable time period as the authority may
consider appropriate.? The submission of
each plan must be accompanied by a synopsis of all comments received and a
formal comment by the county board, the state board or the administrative
council of an area vocational educational center submitting the plan;
(E) Any project specifications and maintenance
specifications considered appropriate by the authority including, but not
limited to, such matters as energy efficiency, preferred siting, construction
materials, maintenance plan and any other matter related to how the project is
to proceed;
(F) A prioritization by the county board, the
state board or the administrative council submitting the plan of each project
contained in the plan.? In
prioritizing the projects, the county board, the state board or the
administrative council submitting the plan shall make determinations The
prioritization shall be determined in accordance with the objective
criteria formulated by the School Building Authority in accordance with this
section.? The priority list is one of the
criteria that shall be considered by the authority in deciding how the
available funds should be expended;
(G) The objective means to be set forth in the
plan and used in evaluating implementation of the overall plan and each project
included in the plan.? The evaluation must
shall measure how the plan addresses the goals of this article and any
guidelines adopted under this article, and how each project is in
furtherance of the facilities plan and school major improvement plan, as
applicable, as well as the importance of the project to the overall
success of the facilities plan or school major improvement plan, and the
overall goals of the authority; and
(H) Any other matters considered by the
authority to be important reflections of how a construction project or a major
improvement project or projects will further the overall goals of this
article.
(2) Guidelines and procedures which may be
adopted by the authority for requiring that a county board modify, update,
supplement or otherwise submit changes or additions to an approved facilities
plan or for requiring that a county board, the state board or the
administrative council of an area vocational educational center modify, update,
supplement or otherwise submit changes or additions to an approved school major
improvement plan.? The authority shall
provide reasonable notification and sufficient time for the change or addition
as delineated in its guidelines. developed by the authority? The guidelines shall require an update of the
estimated duration of school bus transportation times for students associated
with any construction project under consideration by the authority that
includes the closure, consolidation or construction of a school or schools.
(3) Guidelines and procedures for evaluating
project proposals that are submitted to the authority that address, but are not
limited to, the following:
(A) Any project funded by the authority must
shall be in furtherance of the facilities plan or school major
improvement plan and in compliance with the guidelines established by the authority;
(B) If a project is to benefit more than one
county in the region, the facilities plan must shall state the
manner in which the cost and funding of the project will be apportioned among
the counties;
(C) If a county board proposes to finance a
construction project through a lease with an option to purchase pursuant to an
investment contract as described in subsection (f), section fifteen of this
article, the specifications for the project must include the term of the lease,
the amount of each lease payment, including the payment due upon exercise of
the option to purchase, and the terms and conditions of the proposed investment
contract; and
(D) The objective criteria for the evaluation
of projects which shall include, but are is not limited to, the
following:
(i) How the current facilities do not meet and
how the plan and any project under the plan meets meet the
following:
(I) Student health and safety including, but
not limited to, critical health and safety needs;
(II) Economies of scale, including
compatibility with similar schools that have achieved the most economical
organization, facility use and pupil-teacher ratios;
(III) Reasonable travel time and practical
means of addressing other demographic considerations.? The authority may not approve a project after
July 1, 2008 that includes a school closure, consolidation or new
construction for which a new bus route will be created for the
transportation of students in any of the grade levels prekindergarten through
grade five transporting any prekindergarten through fifth grade students
to and from any school included in the project, which new bus if the
route exceeds by more than fifteen minutes the recommended duration of the one-way
school bus transportation duration time for elementary students adopted
by the state board as provided in pursuant to section five-d,
article two-e of this chapter, unless the county has received the written
permission of the state board to create the route in accordance with said
section five-d;
(IV) Multicounty and regional planning to
achieve the most effective and efficient instructional delivery system;
(V) Curriculum improvement and diversification,
including the use of instructional technology, distance learning and access to
advanced courses in science, mathematics, language arts and social studies;
(VI) Innovations in education;
(VII) Adequate space for projected student
enrollments;
?(VIII)
The history of efforts taken by the county board to propose or adopt local
school bond issues or special levies to the extent Constitutionally
permissible; and
(IX)?
Regularly scheduled preventive maintenance; and
(ii) How the project will assure the prudent
and resourceful expenditure of state funds and achieve the purposes of this
article for constructing, expanding, renovating or otherwise improving and
maintaining school facilities for a thorough and efficient education.
(4) Guidelines and procedures for evaluating
projects for funding that address, but are not limited to, the following:
(A) Requiring each county board?s facilities
plan and school major improvement plan to prioritize all the construction
projects or major improvement projects, respectively, within the county.? A school major improvement plan submitted by
the state board or the administrative council of an area vocational educational
center shall prioritize all the school improvement projects contained in the
plan.? The priority list shall be one of
the criteria to be considered by the authority in determining how available
funds shall be expended.? In prioritizing
the projects, the county board, the state board or the administrative council
submitting a plan shall make determinations in accordance with the objective
criteria formulated by the School Building Authority;
(B) The return to each county submitting a
project proposal an explanation of the evaluative factors underlying the
decision of the authority to fund or not to fund the project; and
(C) The allocation and expenditure of funds in
accordance with this article, subject to the availability of funds.
(b) Prior to final action on approving projects
for funding under this article, the authority shall submit a certified list of
the projects to the Joint Committee on Government and Finance.
(c) The State Department of Education shall
conduct on-site inspections, at least annually, of all facilities which have
been funded wholly or in part by moneys from the authority or state board to
ensure compliance with the county board?s facilities plan and school major
improvement plan as related to the facilities; to preserve the physical
integrity of the facilities to the extent possible; and to otherwise extend the
useful life of the facilities. Provided, That The state
board shall submit reports regarding its on-site the inspections of
facilities to the authority within thirty days of completion. of the
on-site inspections:? Provided,
however, That The state board shall promulgate rules regarding the
on-site inspections and matters relating thereto, in consultation with the
authority, as soon as practical and shall submit proposed rules for
legislative review. no later than December 1, 1994
(d) Based on its on-site inspection or
notification by the authority to the state board that the changes or additions
to a county?s board county board?s facilities plan or school
major improvement plan required by the authority have not been
implemented within the time period prescribed by the authority, the state board
shall restrict the use of the necessary funds or otherwise allocate funds from
moneys appropriated by the Legislature for those purposes set forth in section
nine, article nine-a of this chapter.
?18-9D-22.? Eligibility of the
West Virginia Schools for the Deaf and Blind to participate in all types of funding administered or
distributed by the authority.
(a) The Legislature finds that:
(1) The Legislature?s Constitutional
obligation to provide a thorough and efficient public education for the
children of West Virginia includes providing a thorough and efficient education
for the children of West Virginia who are deaf and blind;
(2) The Legislature has endeavored to
fulfill this obligation with the creation, maintenance and operation of the
West Virginia Schools for the Deaf and Blind, established and continued under
article seventeen of this chapter;
(3) The West Virginia Schools for the Deaf
and Blind have for generations provided educational services to children from
each of West Virginia?s fifty-five counties;
(4) The facilities of the West Virginia
Schools for the Deaf and Blind are in need of substantial improvements;
(5) The West Virginia Schools for the Deaf
and Blind have no local levy which supports their operations, and depend
completely upon the appropriations from the state;
(6) The West Virginia Schools for the Deaf
and Blind have no borrowing authority nor revenue stream that can serve as a
source of servicing debt;
(7) Questions have arisen as to whether or
not it is permissible for the School Building Authority to distribute to the
West Virginia Schools for the Deaf and Blind financial assistance for the
construction and improvement of their facilities; and
(8) The West Virginia Schools for the Deaf
and Blind should have access to and be eligible to receive all types of funding
provided to county boards by the authority.
(b) Notwithstanding any provision of this
code to the contrary:
(1) The West Virginia Schools for the Deaf
and Blind are eligible to participate in all funding distributed by the
authority; and
(2) The authority may distribute to the
West Virginia Schools for the Deaf and Blind funds as it determines to be
appropriate.
(c) The authority may
not require the contribution of local funds for a project of the West Virginia
Schools for the Deaf and Blind, nor penalize the consideration or priority
ranking of a project of the schools for lack of local project funds.? The state board may apply for funds for
education programs under its jurisdiction for projects at the West Virginia
Schools for the Deaf and Blind.?
And,
By amending the title
of the bill to read as follows:
Com. Sub. for H. B. 2561 ? ?A Bill to repeal ?11-6A-5a of the
Code of West Virginia, 1931, as amended; to amend and reenact ?11-8-6f and
?11-8-12 of said code; to amend and reenact ?18-9A-2, ?18-9A-4, ?18-9A-5,
?18-9A-6a, ?18-9A-7, ?18-9A-9, ?18-9A-10 and ?18-9A-11 of said code; to amend
said code by adding thereto a new section, designated ?18-9A-25; to amend and
reenact ?18-9D-2, ?18-9D-3, ?18-9D-4c and ?18-9D-16 of said code; and to amend
said code by adding thereto two new sections, designated ?18-9D-4d and ?18-9D-22, all relating to public school support;
repealing code section pertaining to tax treatment of wind power projects;
removing limit on increase in total property tax revenues if the current
regular levy rates of the county boards of education were to be imposed;
requiring each county board of education to establish its regular levy rates
each year up to the statutory maximum levy rates; allowing a county board to
change its proposed regular levy rates from the original proposed levy rates in
its required statement to the Auditor; deleting required periodic legislative
review of definition of ?net enrollment?; changing term ?levies for general
current expense purposes? to ?maximum levies for general current expense
purposes? and modifying the definition to mean ninety percent of the maximum
levy rates for county boards of education; determining allowance for fundable
professional educators at set ratio, rather than the number employed subject to
a limit; providing for determination of allowance for fundable positions in
excess of number employed; deleting expired provisions; basing minimum
professional instructional personnel required on percent of fundable
professional educators or the number employed, whichever is less; providing for
prorating professional instructional personnel among participating counties in
joint school or program or service; removing penalty for not meeting applicable
professional instructional personnel ratio for 2017-2018 school year; deleting
expired provisions; deleting required periodic legislative review of density
category ratios; determining allowance for fundable service personnel at set
ratio, rather than number employed subject to a limit; providing for
determination of allowance for fundable positions in excess of number employed;
providing for proration of number and allowance of personnel employed in part
by state and county funds; adding professional student support personnel
allowance to calculation of Teachers Retirement Fund allowance; basing Teachers
Retirement Fund allowance on average retirement contribution rate of each
county and defining ?average rate?; allowing limited portion of funds for bus
purchases to be used for facility and equipment repair maintenance and
improvement or replacement or other current expense priorities if requested and
approved by state superintendent following verification; changing calculation
of allowance for current expense from percent allowances for professional and
service personnel to county?s state average costs per square footage per
student for operations and maintenance; basing the allowance to improve
instructional programs and instructional technology on the portion of the
increase in local share amount for the next school year that is due to an increase
in assessed values only; removing authorization for use of instructional
improvement funds for implementation and maintenance of the uniform integrated
regional computer information system; increasing percentage of allocation for
the improvement of instructional programs that can be used to employ school
personnel; removing requirement for fully utilizing applicable provisions of
allowances for professional and service personnel before using instructional
improvement funds for employment; removing restriction limiting use of new
instructional improvement funds for employment except for technology system
specialists until certain determination made by state superintendent;
authorizing use of instructional technology improvement funds for employment of
technology system specialists and requiring amount used to be included and
justified in strategic technology plan; specifying when certain debt service
payments are to be made into School Building Capital Improvement Fund;
authorizing use of percentages of allocations for improving instructional
programs and improving instructional technology for facility and equipment
repair, maintenance and improvement or replacement and other current expense
priorities and for emergency purposes; requiring amounts used to be included
and justified in respective strategic plans; basing the computation of local
share on the maximum levies for general current expense purposes; making the
West Virginia Schools for the Deaf and Blind eligible to participate in any and
all funding administered or distributed by the West Virginia School Building
Authority; and requiring the School Building Authority to maintain a reserve
fun for the purpose of making emergency grants to financially distressed county
boards for certain purposes.?
Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates and request
concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that
the Senate had passed, with amendment, a bill of the House of Delegates, as
follows:
Com.
Sub. for H. B. 2601,
Relating to municipal policemen?s or municipal firemen?s pension and relief
funds.
On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On
pages three and four, section twenty-seven-b, lines three through five, by
striking out the words ?felony and, upon conviction thereof, shall be punished
by a fine not to exceed $5,000, by imprisoned in a state correctional facility
not more than five years, or by both fine and imprisoned? and inserting in lieu
thereof the words ?misdemeanor and, upon conviction thereof, shall be fined not
more than $1,000 or confined in jail not more than one year, or both fined and
confined?.
On
page four, section twenty-seven-b, line seven, after the word ?Board? and the
period, by striking out the remainder of the bill.
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2601- ?A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto two new sections, designated
?8-22-27a and ?8-22-27b, all relating to administration of municipal pensions;
establishing procedures to correct errors in the administration of municipal
pensions; making the act of fraud in relation to a record of a municipal
pension a misdemeanor; and providing for criminal penalties.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 525),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: ?Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2601) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2679, Relating to the possession of firearms in parks and
park facilities.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
??????????? On page one, by striking out
everything after the enacting clause and inserting in lieu thereof the
following:
?That
?20-2-19a of the Code of West Virginia, 1931, as amended, be repealed; that
?7-11-15 of said code be amended and reenacted; and that ?20-2-5, ?20-2-42g and
?20-2-42h of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS
AND OFFICERS.
ARTICLE 11. COUNTY PARKS
AND RECREATION COMMISSIONS.
??7-11-5. General powers of commission; rules and
regulations; misdemeanor offenses; park police authorized.
The
commission shall have the necessary powers and authority to manage and control
all public parks and recreational properties and facilities owned by the county
or commission and used as a part of such public parks and recreation system,
including the right to promulgate rules and regulations concerning the
management and control of such parks and recreational properties and facilities
and to enforce any such rules and regulations so promulgated: Provided, That a commission
shall not promulgate or enforce rules which prohibit the possession of firearms
in such parks.
The
commission shall also have plenary power and authority to prepare and submit to
the county court commission for adoption rules and regulations
regulating the use of any parks and recreational properties and facilities
under the control of the commission and prohibiting any type of use of or
activities in connection with any such properties or facilities, and any such
rules, and regulations if so adopted, shall be duly entered of record in the
order book of the county commission. The violation of any such rule and
regulation so adopted by the county commission shall constitute a misdemeanor
and, any person convicted of any such violation shall be punished by a fine of
not less than $5 nor more than $100, or by imprisonment in jail for a period
not exceeding thirty days, or by both such fine and imprisonment. Justices
of the peace The magistrate court of the county shall have
concurrent jurisdiction with the circuit court and other courts of record
(having criminal jurisdiction) of any misdemeanor offenses arising under this
article. The violation of any such rule and regulation which also
constitutes the violation of any state law or municipal ordinance may be
prosecuted and punished as a violation of such state law or municipal ordinance
rather than under the provisions of this section. To enforce any such rules and
regulations, to protect and preserve all properties and facilities under the
control of the commission and to preserve law and order in connection
therewith, the commission shall have plenary power and authority to provide in
its bylaws procedures for the appointment, supervision and discharge of one or
more park police officers. Whenever any such appointment is made, a copy of the
order of appointment shall be filed maintained by the commission for
review by members of the public with the county court.
In
any area under the jurisdiction and control of the commission, or in connection
with any properties or facilities under the jurisdiction and control of the
commission, or in pursuit of one or more individuals therefrom, any park police
officer so appointed shall have all of the power and authority which a
regularly appointed deputy sheriff of such county has in enforcing the criminal
laws of the state. Notwithstanding any provisions of this code to the contrary,
park police officers appointed as aforesaid shall not be required to obtain a
state license to carry a weapon, as required by the provisions of section two,
article seven, chapter sixty-one of this code. When any such commission has
purchased one or more policies of public liability insurance providing the
commission and its officers, agents and employees insurance coverage for legal
liability of said commission and its officers, agents and employees for bodily
injury, personal injury or damage (including, but not limited to, false arrest
and false imprisonment) and property damage, and affording said commission and
its officers, agents and employees insurance coverage against any and all legal
liability arising from, growing out of, by reason of or in any way connected
with, any acts or omissions of said commission, or its officers, agents or
employees in the performance of their official duties, and so long as the
coverage aforesaid remains in full force and effect as to such park police
officers, then the bond specified in section five, article seven of said
chapter sixty-one shall not be required as to such park police officers.
CHAPTER 20. NATURAL
RESOURCES.
ATICLE 2. WILDLIFE RESOURCES.
?20-2-5. Unlawful methods of hunting and fishing and other
unlawful acts; Sunday hunting.
(a) Except as authorized by the
director or by law, it is unlawful at any time for any person to:
(1) Shoot at any wild bird
or wild animal unless it is plainly visible;
(2) Dig out, cut out, smoke
out, or in any manner take or attempt to take any live wild animal or wild bird
out of its den or place of refuge;
(3) Use or attempt to use
any artificial light or any night vision technology, including image
intensification, thermal imaging or active illumination while hunting,
locating, attracting, taking, trapping or killing any wild bird or wild animal:
Provided, That it is lawful to hunt or take coyote, fox, raccoon, opossum
or skunk by the use of artificial light or night vision technology. Any person
violating this subdivision is guilty of a misdemeanor and, upon conviction
thereof, shall for each offense be fined not less than $100 nor more than $500,
and shall be confined in jail for not less than ten days nor more than one
hundred days;
(4) Hunt, take, kill, wound
or shoot at wild animals or wild birds from an airplane or other airborne
conveyance, a drone or other unmanned aircraft, an automobile or other land
conveyance, or from a motor-driven water conveyance;
(5)
Use a drone or other unmanned aircraft to hunt, take or kill a wild bird or
wild animal, or to use a drone or other unmanned aircraft to drive or herd any
wild bird or wild animal for the purposes of hunting, trapping or killing;
(6) Take any beaver or
muskrat by any means other than a trap;
(7) Catch, capture, take,
hunt or kill by seine, net, bait, trap or snare or like device a bear, wild
turkey, ruffed grouse, pheasant or quail;
(8) Intentionally destroy
or attempt to destroy the nest or eggs of any wild bird or have in his or her
possession the nest or eggs;
(9) Carry an uncased
or loaded firearm in the woods of this state or in state parks, state
forests, state wildlife management areas or state rail trails with the
following permissible exceptions:
(A)
A person in possession of a valid license or permit during open firearms
hunting season for wild animals and nonmigratory wild birds where hunting is
lawful;
(B)
A person hunting or taking unprotected species of wild animals, wild birds and
migratory wild birds during the open season, in the open fields, open water and
open marshes of the state where hunting is lawful;
(C)
A person carrying a firearm pursuant to sections six and six-a of this article;
or
(D)
A person carrying a firearm handgun for self-defense who is not
prohibited from possessing firearms under state or federal law; or by
section seven, article seven, chapter sixty-one of this code;
(E)
A person carrying a rifle or shotgun for self-defense who is not prohibited
from possessing firearms under state or federal law: Provided, That this exception does not apply to an uncased rifle or
shotgun carried in state park, state forest, or state wildlife management area
recreational facilities and on marked trails within state park or state forest
borders.
?(10) Have in his or her possession a crossbow
with a nocked bolt, or a rifle or shotgun with cartridges that have not been
removed or a magazine that has not been detached, in or on any vehicle or
conveyance, or its attachments. For the purposes of this section, a rifle or
shotgun whose magazine readily detaches is considered unloaded if the magazine
is detached and no cartridges remain in the rifle or shotgun itself. Except
that between five o?clock post meridian of day one and seven o?clock ante
meridian, Eastern Standard Time, of the following day, any unloaded firearm or
crossbow may be carried only when in a case or taken apart and securely
wrapped. During the period from July 1 to September 30, inclusive, of each
year, the requirements relative to carrying unloaded firearms are permissible
only from eight-thirty o?clock post meridian to five o?clock ante meridian,
Eastern Standard Time: Provided, That the time periods for carrying
unloaded and uncased firearms are extended for one hour after the post meridian
times and one hour before the ante meridian times established in this
subdivision, if a person is transporting or transferring the firearms to or
from a hunting site, campsite, home or other abode;
(11) Hunt, catch, take,
kill, trap, injure or pursue with firearms or other implement by which wildlife
may be taken after the hour of five o?clock ante meridian on Sunday on private
land without the written consent of the landowner any wild animals or wild
birds except when a big game season opens on a Monday, the Sunday prior to that
opening day will be closed for any taking of wild animals or birds after five o?clock
ante meridian on that Sunday: Provided, That traps previously and
legally set may be tended after the hour of five o?clock ante meridian on
Sunday and the person tending the traps may carry firearms for the purpose of
humanely dispatching trapped animals. Any person violating this subdivision is
guilty of a misdemeanor and, upon conviction thereof, in addition to any fines
that may be imposed by this or other sections of this code, is subject to a
$100 fine;
(12)(11) Hunt, catch, take, kill,
injure or pursue a wild animal or wild bird with the use of a ferret;
(13)(12) Buy raw furs, pelts or
skins of fur-bearing animals unless licensed to do so;
(14)(13) Catch, take, kill or
attempt to catch, take or kill any fish by any means other than by rod, line
and hooks with natural or artificial lures: Provided, That snaring of
any species of suckers, carp, fallfish and creek chubs is lawful;
(15)(14) Employ, hire, induce or
persuade, with money, things of value or by any means, any person to hunt,
take, catch or kill any wild animal or wild bird except those species in which
there is no closed season; or to fish for, catch, take or kill any fish,
amphibian or aquatic life that is protected by rule, or the sale of which is
otherwise prohibited;
(16)(15) Hunt, catch, take, kill,
capture, pursue, transport, possess or use any migratory game or nongame birds
except as permitted by the Migratory Bird Treaty Act, 16 U. S. C. ?703, et
seq., and its regulations;
(17)(16) Kill, take, catch, sell,
transport or have in his or her possession, living or dead, any wild bird other
than a game bird including the plumage, skin or body of any protected bird,
irrespective of whether the bird was captured in or out of this state, except
the English or European sparrow (Passer domesticus), starling (Sturnus
vulgaris) and cowbird (Molothrus ater), which may be killed at any time;
(18)(17) Use dynamite, explosives
or any poison in any waters of the state for the purpose of killing or taking
fish. Any person violating this subdivision is guilty of a felony and, upon
conviction thereof, shall be fined not more than $500 or imprisoned for not
less than six months nor more than three years, or both fined and imprisoned;
(19)(18) Have a bow and gun, or
have a gun and any arrow, in the fields or woods at the same time;
(20)(19) Have a crossbow in the
woods or fields, or use a crossbow to hunt for, take or attempt to take any
wildlife except as otherwise provided in sections five-g and forty-two-w of
this article;
(21)(20) Take or attempt to take
turkey, bear, elk or deer with any arrow unless the arrow is equipped with a
point having at least two sharp cutting edges measuring in excess of three
fourths of an inch wide;
(22)(21) Take or attempt to take
any wildlife with an arrow having an explosive head or shaft, a poisoned arrow
or an arrow which would affect wildlife by any chemical action;
(23)(22) Shoot an arrow across any
public highway;
(24)(23) Permit any dog owned or
under his or her control to chase, pursue or follow the tracks of any wild
animal or wild bird, day or night, between May 1 and August 15: Provided,
That dogs may be trained on wild animals and wild birds, except deer and wild
turkeys, and field trials may be held or conducted on the grounds or lands of
the owner, or by his or her bona fide tenant, or upon the grounds or lands of
another person with his or her written permission, or on public lands at any
time. Nonresidents may not train dogs in this state at any time except during
the legal small game hunting season. A person training dogs may not have
firearms or other implements in his or her possession during the closed season
on wild animals and wild birds;
(25)(24) Conduct or participate in
a trial, including a field trial, shoot-to-retrieve field trial, water race or
wild hunt: Provided, That any person, group of persons, club or
organization may hold a trial upon obtaining a permit pursuant to section
fifty-six of this article. The person responsible for obtaining the permit
shall prepare and keep an accurate record of the names and addresses of all
persons participating in the trial and make the records readily available for
inspection by any natural resources police officer upon request;
(26)(25) Hunt, catch, take, kill or
attempt to hunt, catch, take or kill any wild animal, wild bird or wild fowl
except during open seasons;
(27)(26) Hunting Hunt
on public lands on Sunday after five o?clock ante meridian is prohibited;
(28) Hunt, catch, take,
kill, trap, injure or pursue with firearms or other implement which wildlife
can be taken, on private lands on Sunday after the hour of five o?clock ante
meridian: Provided, That the provisions of this subdivision do not apply
in any county until the county commission of the county holds an election on
the question of whether the provisions of this subdivision prohibiting hunting
on Sunday shall apply within the county and the voters approve the allowance of
hunting on Sunday in the county. The election is determined by a vote of the
resident voters of the county in which the hunting on Sunday is proposed to be
authorized. The county commission of the county in which Sunday hunting is
proposed shall give notice to the public of the election by publication of the
notice 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 the
publication is the county in which the election is to be held. The date of the
last publication of the notice shall fall on a date within the period of the
fourteen consecutive days next preceding the election.
On the local option
election ballot shall be printed the following:
Shall hunting on Sunday be
authorized on private lands only with the consent of the land owner in ________
County?
[ ] Yes
[ ] No
(Place a cross mark in the
square opposite your choice.)
(29)(27) Hunt or conduct hunts for
a fee when the person is not physically present in the same location as the
wildlife being hunted within West Virginia.
??????????? (28) Catch, take, kill, or
attempt to catch, take or kill any fish by any means within two hundred feet of
division personnel engaged in stocking fish in public waters.
(b)
Notwithstanding any ballot measure relating to Sunday hunting, it is lawful to
hunt throughout the State of West Virginia on private lands on Sundays after
the hour of five o?clock ante meridian with the written consent of the private
landowner pursuant to section seven, article two of this chapter.
?20-2-42g.
Class H nonresident small game hunting license.
A
Class H license is a nonresident small game hunting license and entitles the
licensee to hunt small game in all counties of the State, except as prohibited
by rules of the director or Natural Resources Commission and except when
additional licenses, stamps or permits are required, for a period of six
consecutive hunting days chosen by the licensee, excluding Sunday in
counties closed to Sunday hunting. The fee for the license is $25. This is
a base license and does not require the purchase of a prerequisite license to
participate in the activities specified in this section, except as noted.
?20-2-42h.
Class J nonresident small game shooting preserve license.
A
Class J license is a nonresident small game shooting preserve license and
entitles the licensee to hunt small game on designated shooting preserves,
except as prohibited by rules of the director or Natural Resources Commission
and except when additional licenses, stamps or permits are required, for a
period of six consecutive hunting days chosen by the licensee, excluding
Sunday in counties closed to Sunday hunting. The fee for the license is
$10. This is a base license and does not require the purchase of a prerequisite
license to participate in the activities specified in this section, except as
noted.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2679 ? ?A Bill to repeal ?20-2-19a of the Code of West Virginia, 1931, as amended; to
amend and reenact ?7-11-5 of said code; and to amend and reenact ?20-2-5,
?20-2-42g and ?20-2-42h, all relating to firearms and hunting generally;
eliminating authority for trappers to carry certain firearms on Sundays while
checking traps; prohibiting county parks and recreation commissions from
promulgating or enforcing rules which prohibit possession of firearms in parks;
updating antiquated language; allowing the carrying of an uncased or loaded
long firearm in the woods of this state and state parks, state forests, state
wildlife management areas or state rail trails; excepting recreation facilities
therein from areas where uncased or loaded long guns may be possessed;
providing exceptions to the prohibition for self-defense purposes; eliminating
local option election regarding to hunting on private land on Sundays;
permitting Sunday hunting on private land with written permission of the owner
of an authorized agent of the owner; clarifying that hunting on public land on
Sundays after five o?clock ante meridian is illegal; superseding ballot
measures in elections prior to the effective date of legislation making Sunday
hunting on private land lawful with the written permission of the landowner or
an authorized agent thereof; creating the misdemeanor offense of catching,
taking, or killing of fish within two hundred feet of Division of Natural
Resources personnel engaged in stocking fish in public waters; and establishing
criminal penalties.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 526),
and there were--yeas 94, nays 5, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Fleischauer, Lane, Pushkin,
Pyles and Rowe.
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2679) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with a title amendment, a bill of the House of
Delegates, as follows:
??????????? Com.
Sub. for H. B. 2683, Relating to West Virginia Insurance Guaranty
Association Act.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the title of the bill by the Senate:
??????????? Com.
Sub. for H. B. 2683 ? ?A Bill to amend and reenact ?33-26-2,
?33-26-3, ?33-26-4, ?33-26-5, ?33-26-8, ?33-26-9, ?33-26-10, ?33-26-11,
?33-26-12, ?33-26-13, ?33-26-14 and ?33-26-18 of the Code of West Virginia,
1931, as amended, all relating to West Virginia Insurance Guaranty Association
Act; modifying the purpose,? scope and
construction of act; adding and amending definitions; clarifying and adding
powers, duties and rights of association; limiting amount payable for covered
claims for deliberate intention, including workers? compensation claims;
limiting amount for covered claim for return of unearned premium; limiting
amount association must pay for the obligation of the insolvent insurer;
setting time limits for filing claims; specifying when obligation of insurer to
defend an insured ceases; subject to limitations, giving association rights,
duties and obligations of the insolvent insurer; allowing association to
determine order of claims payment; prohibiting payment of dividends during
period of deferment; hiring of legal counsel for the defense of covered claims;
notification of claimants; setting forth the association?s right to review aid
contest settlements, releases, compromises, waivers and judgments; specifying
when association is not bound by a settlement, release, compromise or waiver;
requiring association to establish procedures for requesting financial
information from insurers and claimants; setting forth actions association may
take where insured or claimant refuses to provide requested financial information;
allowing association to intervene as a party as a matter of right before any
court; requiring rules of association be subject to legislative approval;
requiring notice of claims be filed with the association; setting forth the
persons from whom the association may recover all amounts paid by the
association on behalf of that person; requiring association and associations in
other states be recognized as claimants in the liquidation of an insolvent
insurer; requiring person having a claim to exhaust all coverage under the
policy; setting forth what constitutes a claim relating to exhaustion of
coverage; requiring association be reimbursed for any deductible claim if paid;
requiring board of directors to make recommendations to commissioner regarding
solvency; allowing board of directors to compile reports on insolvencies; and
providing that reports and recommendations of board are not subject to
disclosure under the Freedom of Information Act.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 527),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members elected
to the House of Delegates having voted in the affirmative, the Speaker declared
the bill (Com. Sub. for H. B. 2683) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect July 1, 2017, a bill
of the House of Delegates, as follows:
??????????? Com.
Sub. for H. B. 2702, Relating to excused absences for personal illness from
school.
??????????? On motion of Delegate Cowles, the
House concurred in the following amendment of the bill by the Senate:
??????????? On page two, section four, lines
fourteen through seventeen, after the word ?family?, by changing the colon to a
period and striking out the provisio.
On
page two, section four, line thirty-one, after the word ?and?, by striking out
the period.
On
page two, section four, line thirty-four, by striking out the word ?not? and
inserting in lieu thereof the word ?no?.
On
page two, section four, after line thirty-five, by inserting a new subsection,
designated subsection (b), to read as follows:
?(b)
In the case of three total unexcused absences of a student during a school
year, the attendance director or assistant may serve notice by written or other
means to the parent, guardian, or custodian of the student that the attendance
of the student at school is required and that if the student has five unexcused
absences, a conference with the principal, administrative head or other chief
administrator may be required.?
And,
by relettering the remaining subsections.
On
page three, section four, line forty-nine, after the word ?make? by inserting
the word ?a?.
On
page two, section four, by striking out the word ?may? and inserting in lieu
thereof the word ?will?.
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2702 ? ?A Bill to amend and reenact ?18-8-4
of the Code of West Virginia, 1931, as amended, relating to documentation of
unexcused absences from compulsory school attendance; limiting the excused
absences for personal illness or injury in the family to those of student?s
parent, guardian or custodian; requiring all documentation related to absences
be provided to school no later than three days of occurrence; authorizing
schools to have discretion whether to give notice in the case of three
unexcused absences; giving schools the discretion whether to give said notice
by written or other means to a parent after three absences; giving discretion
for attendance director or assistant to make a complaint against parent after
ten total unexcused absences; and clarifying responsibility of administrative
head or other chief administrator of school for meeting; and making other
technical clarifications.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 528),
and there were--yeas 89, nays 10, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Blair, Byrd, Fluharty, Howell,
Lynch, Robinson, Shott, Sobonya, Sponaugle and Upson.
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2702) passed.
??????????? Delegate
Cowles moved that the bill take effect July 1, 2017.
??????????? On this question, the yeas and nays
were taken (Roll No. 529), and there
were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and
not voting being as follows:
??????????? Nays: Byrd and Howell.
??????????? Absent and Not Voting: Kessinger.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2702) takes effect July 1, 2017.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect July 1, 2017, a bill
of the House of Delegates, as follows:
??????????? Com.
Sub. for H. B. 2720, Allowing the School Building Authority to transfer
funds allocated into the School Construction Fund.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
??????????? On page one, by striking out the
enacting section and inserting in lieu thereof a new enacting section, to read
as follows? and a colon.
?That
?18-9D-3 and ?18-9D-8 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows? followed by a colon.
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2720 ? ?A Bill to amend and reenact ?18-9D-3
and ?18-9D-8 of the Code of West Virginia, 1931, as amended, all relating to
the funding of School Building Authority operational costs; and continuing a
special revenue account known as the School Building Authority Fund.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 530),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Folk.
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2720) passed.
??????????? Delegate
Cowles moved that the bill take effect July 1, 2017.
??????????? On this question, the yeas and nays
were taken (Roll No. 531), and there
were--yeas 98, nays none, absent and not voting 2, with the absent and not
voting being as follows:
??????????? Absent and Not Voting: Kessinger and
Nelson.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2720) takes effect July 1, 2017.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2739, Relating to supplemental Medicaid
provider reimbursement.
??????????? On motion of Delegate Cowles, the
House concurred in the following amendment of the bill by the Senate:
On
page three, section twenty-five, after line forty-eight, by inserting a new
subdivision, designated subdivision four to read as follows:
?(4)
Notwithstanding the provisions of subdivision (1) of this subsection, the
Department of Health and Human Resources shall, prior to seeking federal
approval of any supplemental reimbursement pursuant to this section, attempt to
maximize the number of qualified group emergency medical transportation service
providers eligible to receive the supplemental reimbursement. These emergency
medical transportation service providers would include:
(A)
Any not-for-profit emergency medical transport providers not owned by the state
or a city, a county, or a city and county;
(B)
Any voluntary emergency transportation service providers not owned by the state
or a city, a county, or a city and county; and
(C)
All other emergency medical transportation service providers licensed pursuant
to the provisions of article four-c, chapter sixteen of this code? and a comma.
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 532),
and there were--yeas 97, nays 2, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Folk and McGeehan.
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2739) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2771, Relating to temporary teaching certificates for Armed
Forces spouses.
??????????? On motion of Delegate
Cowles, the House concurred in the following amendment of the bill by the
Senate:
??????????? On page five, section two, line
ninety-six, after the word ?current?, by inserting the word ?unencumbered?.
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 533),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2771) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2815, Relating to higher education
governance.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On page ten, section two, line one
hundred nineteen, after the word ?state? and a semicolon, by inserting the word
?and?.
On page ten, section two, line one
hundred twenty-two, after the word ?Administration?, by changing the semicolon
to a period and striking out the word ?and?.
On page twelve, section six, line
thirty-eight, by striking out the word ?A? and inserting in lieu thereof the
words ?Except for the exempted schools, a?.
On page thirteen, section one, line
seven, by striking out the word ?provide? and a comma
On page sixteen, section two, line
forty-one, by striking out the word ?Any? and inserting in lieu thereof the
words ?An at-large?.
On page seventeen, section four, line
thirty-two, after the word ?council?, by striking out the comma;.
On page eighteen, section four, line
forty-five, by striking out the word ?Review? and inserting in lieu thereof the
words ?Except the exempted schools, review?.
On page eighteen, section four, line
forty-six, after the word ?compact?, by striking out the comma and the words
?except the exempted schools?.
On page twenty-eight, section four,
after line three hundred ten, by adding a new subsection, designated subsection
(d), to read as follows:
?(d)
The Higher Education Policy Commission shall examine the question of general
revenue appropriations to individual higher education institutions per student,
and per credit hour, and by other relevant measures at all higher education
institutions, including four-year baccalaureate institutions and the community
and technical colleges, and on or before January 1, 2018, the commission shall
deliver its report to the Joint Committee on Government and Finance and the
Legislative Oversight Commission on Education Accountability. This report
shall include a recommendation to the Legislature on a formula for the
allocation of general revenue to be appropriated to such institutions that
provides for ratable funding across all four-year institutions and community
and technical colleges on a ratable basis, by enrolled student, by credit hour
or by other relevant measures. On such basis, the commission shall make a
recommendation to the Legislature as to the amounts that each such institution
should have appropriated to it in the general revenue budget for fiscal year
2019, based upon the total general revenue appropriations that such
institutions receive in aggregate in the enacted budget for fiscal year 2018.?
On page twenty-nine, section six, line
twelve, after the words ?Shepherd University? by striking out the comma and
inserting in lieu thereof the word ?and?.
On page twenty-nine, section six, line
thirteen, by striking out the word ?and?.
On page thirty-six, section seven, line
fifty-eight, by striking the words ?their respective jurisdictions? and
inserting in lieu thereof the words ?its jurisdiction?.
On page thirty-six, section seven, line
sixty, by striking out the words ?their respective jurisdictions? and inserting
in lieu thereof the words ?its jurisdiction?.
On page thirty-seven, section seven,
line seventy-eight, by striking out the word ?the?.
On page forty, section seven, line one
hundred fifty, by striking out the words ?their respective jurisdictions? and
inserting in lieu thereof the words ?its jurisdiction?.
On page forty, section seven, lines one
hundred fifty-four and one hundred fifty-five, by striking out the words ?their
respective jurisdictions? and inserting in lieu thereof the words ?its
jurisdiction?.
On page forty, after line one hundred
fifty-seven, by inserting the following:
??18B-1F-10.
Department of commerce to study and report relating to research and technology
parks.
The
West Virginia Development Office shall research, investigate and make
recommendations relating to advancing research activities, economic development
and job creation relating to foundations and private entities, including the
I-79 Technology Park, who focus on research and job development and that
receive or have received since July 1, 2012, appropriation support from the
State of West Virginia. The Development Office shall submit a report of its
investigation and findings to the Governor and the Legislature on or before
December 31, 2017.?
On page forty-three, section four, line
thirty-one, by striking out the word ?is? and inserting in lieu therefore the
word ?are?.
On page forty-three, section four, line
thirty-three, by striking out the word ?its? and inserting in lieu thereof the
words ?their respective?.
On page forty-eight, section one, line
seven, by striking out the word ?Osteopathy? and inserting in lieu thereof the
words ?Osteopathic Medicine?.
On page forty-nine, section seven, line
three, after the word ?of?, by striking out the words ?state colleges and
universities in this state and? and inserting in lieu thereof the words ?colleges
in this state except?.
On page fifty-five, section four, lines
eighty-three and eighty-four, by striking out all of subsection (h).
And, by relettering the remaining subsections.
On page sixty-one, section six, line
thirteen, by striking out the word ?or? and inserting in lieu thereof the word
?and?.
On page seventy-six, section eight, line
fifty-seven, by striking out the words ?under the jurisdiction of the commission?.
On page seventy-six, section eight, line
sixty-six, by striking out the words ?under the jurisdiction of the commission?.
On page ninety-seven, section thirteen,
after line seven, by inserting a new subsection, designated subsection (b), to
read as follows:
?(b)
Notwithstanding any provision of this code to the contrary, any acquisition,
bequest, donation or construction of new buildings, office space or grounds
exceeding $1 million in appraised value or requiring $1 million in repairs and
renovation or lease payments over the lifetime of the lease, made or accepted
by an institution?s research corporation established by article twelve of this
chapter or an affiliated foundation of an institution under the jurisdiction of
the council, shall be approved by the council.?
And,
by relettering the remaining subsections.
And,
By striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as follows:
?That ?18B-1-5a and ?18B-1-10 of the
Code of West Virginia, 1931, as amended, be repealed; that ?18B-1A-3 of said
code be repealed; that ?18B-1B-10 and ?18B-1B-13 of said code be repealed; that
?18B-2-5 and ?18B-2-7 of said code be repealed; that ?18B-5-2a of said code be
repealed; that ?18B-1-2 and ?18B-1-6 of said code be amended and reenacted;
that ?18B-1B-1, ?18B-1B-2, ?18B-1B-4, and ?18B-1B-6 of said code be amended and
reenacted; that ?18B-1D-2, ?18B-1D-4, and ?18B-1D-7 of said code be amended and
reenacted; that said code be amended by adding thereto a new section, designated
?18B-1F-10; that ?18B-2A-3 and ?18B-2A-4 of said code be amended and reenacted;
that ?18B-3-1 of said code be amended and reenacted; that ?18B-4-7 of said code
be amended and reenacted; that ?18B-5-4, ?18B-5-6, ?18B-5-7, and ?18B-5-9 of
said code be amended and reenacted; that ?18B-10-1, ?18B-10-1c, ?18B-10-8, and
?18B-10-16 of said code be amended and reenacted; that ?18B-19-1, ?18B-19-3,
?18B-19-4, ?18B-19-5, ?18B-19-6, ?18B-19-7, ?18B-19-9, ?18B-19-10, ?18B-19-11,
?18B-19-13, and ?18B-19-14 of said code be amended and reenacted; and that said
code be amended by adding thereto a new section, designated ?18B-19-19, all to
read as follows? and a colon.
And,
By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2815 ? ?A Bill
to repeal ?18B-1-5a and 18B-1-10 of the Code of West Virginia, 1931, as
amended; to repeal ?18B-1A-3 of said code; to repeal ?18B-1B-10 and ?18B-1B-13
of said code; to repeal ?18B-2-5 and ?18B-2-7 of said code; to repeal ?18B-5-2a
of said code; to amend and reenact ?18B-1-2 and ?18B-1-6 of said code; to amend
and reenact ?18B-1B-1, ?18B-1B-2, ?18B-1B-4, and ?18B-1B-6 of said code; to
amend and reenact ?18B-1D-2, ?18B-1D-4, and ?18B-1D-7 of said code; to amend
said code by adding thereto a new section, designated ?18B-1F-10; to amend and
reenact ?18B-2A-3 and ?18B-2A-4 of said code; to amend and reenact ?18B-3-1 of
said code; to amend and reenact ?18B-4-7 of said code; to amend and reenact
?18B-5-4, ?18B-5-6, ?18B-5-7, and ?18B-5-9 of said code; to amend and reenact
?18B-10-1, ?18B-10-1c, ?18B-10-8, and ?18B-10-16 of said code; to amend and
reenact ?18B-19-1, ?18B-19-3, ?18B-19-4, ?18B-19-5, ?18B-19-6, ?18B-19-7,
?18B-19-9, ?18B-19-10, ?18B-19-11, ?18B-19-13, and ?18B-19-14 of said code; and
to amend said code by adding thereto a new section, designated ?18B-19-19, all
relating to public education higher education governance generally; defining
terms; repealing obsolete provisions of code; clarifying scope of rule-making
authority of higher education policy commission and certain institutions of
higher education; eliminating outdated language; providing for rule-making
procedures; requiring promulgation of rules by commission, council and certain
institutions of higher education; providing for shorter time period for commission
and council to review and comment on rules proposed by governing boards of
institutions of higher education; providing legislative intent; providing for
composition of commission; providing for primary responsibility of commission;
updating and clarifying powers of commission; limiting authority of commission
over certain institutions of higher education; eliminating authority of
commission to assess institutions for payment of expenses of commission and for
funding of statewide higher education services, obligations, or initiatives;
clarifying authority of commission over review and approval of academic
programs; repealing and eliminating outdated language; eliminating authority of
commission with respect to certain financial and budget reviews and approvals; directing
the commission to examine general revenue appropriations of higher education
institutions and to report findings to the Joint Committee on Government and
Finance and the Legislative Oversight Commission on Education Accountability
with a recommendation to the Legislature on a formula for allocation of general
revenue to be appropriated to the institutions; expanding authority of certain
governing boards over appointment of president of certain higher education
institutions; eliminating requirement for approval by commission of appointment
of president for certain institutions of higher education; eliminating
jurisdiction of commission relative to the accountability system over certain
institutions of higher education; providing for updated responsibility of
commission in development and advancement of public policy agenda and
collection of data for certain institutions of higher education; eliminating
certain reporting responsibilities for certain institutions of higher
education; altering authority of commission over institutional compacts of
certain institutions of higher education; eliminating requirement for certain
institutions of higher education to prepare an institutional compact for
submission to the commission; eliminating application of certain data-based
measures on certain institutions of higher education; altering timeframe for
updates to institutional compacts; eliminating commission approval of
institutional compacts of certain institutions of higher education; providing
for a study by the West Virginia Development Office relating to foundations and
private entities who focus on research and job development and that receive or
have received since July 1, 2012, appropriation support from the State of West
Virginia; eliminating authority of chancellor over coordination of policies,
purposes and rules of governing boards of certain institutions of higher
education; updating powers of governing boards; eliminating requirement of
commission approval of master plans for certain institutions of higher
education; requiring certain institutions to provide copies of master plan to
Legislative Oversight Commission on Educational Accountability; providing that
rules of commission and council related to administering a system for the
management of personnel matters do not apply to certain institutions of higher
education; authorizing governing boards to contract and pay for any
supplemental employee benefit; providing for legislative findings and purposes;
clarifying authority of certain governing boards to delegate authority to its
president; clarifying authority of commission and governing boards of certain
institutions of higher education with respect to development of rules for
accreditation and determination of minimum standards for conferring
degrees; eliminating authority of commission to revoke an institution?s
authority to confer degrees when governing board or chief executive officer do
not provide certain information to commission; eliminating applicability of
certain commission and council rules on certain institutions of higher
education; requiring certain governing boards to promulgate and adopt rules
related to acquisitions and purchases; clarifying authority of certain
governing boards over certain purchasing activities; authorizing prepayment by
commission, council or governing boards in certain instance; expanding scope of
authorized purchasers on certain purchase contracts; updating power of Joint
Committee over performance audits of purchasing; updating authority of
commission, council and governing boards over purchase card procedures;
requiring certain governing boards to establish purchasing card procedures;
clarifying authority for state institutions to enter into design-build
contracts and other commonly accepted methods of procurement and financing for
construction projects; providing that Design-Build Procurement Act does not
apply to state institutions of higher education; providing authority to donate
equipment, supplies and materials to not for profit entity to promote public
welfare; updating certain best practices applicable to ensuring fiscal
integrity of institutions of higher education; authorizing additional situation
where emergency purchase card use is permitted; authorizing different tuition
and fees for online courses; updating time frame for payment of fees by
students; authorizing deposit of certain fees into single special revenue
account by certain institutions; updating applicability of rule by commission
and council for tuition and deferred payment plans; authorizing certain
governing board to proposed a rule related to tuition and fee deferred payment
plans; authorizing certain governing boards to authorize a mandatory auxiliary
fee without commission approval; updating tuition and fee increase percentage that
requires commission or council approval; updating conditions commission or
council are required to consider in determining whether to approve a tuition or
fee increase; revising requirements and parameters for certain revenue bonds
issued by certain governing boards; updating approvals required for issuance of
certain revenue bonds by state institutions of higher education; providing for
transfer and deposit of certain fees by certain governing boards into single
special revenue account; requiring commission and council to develop system
capital development oversight policy and providing content for such policy;
requiring each governing board to adopt a campus development plan; updating
time frame for reporting to commission and council on campus development plans;
eliminating requirement for commission approval of campus development plans of
certain governing boards; providing for content of campus development plans;
eliminating commission approval over certain capital and maintenance project
lists; authorizing certain governing boards to undertake projects not contained
in campus development plan; eliminating certain commission approvals related to
capital improvements for certain institutions; authorizing capital improvements
to be funded through notes; updating conditions to be met for certain
institutions to be responsible for capital project management; updating
requirements for capital project management rule to be promulgated and adopted
by certain governing boards; providing updated applicability and functions of
higher education facilities information system; eliminating certain
requirements related to leasing of real property by commission, council, and
governing boards; requiring notice to certain local governmental entities and
legislators for certain sales and leases of land; updating permitted uses of
proceeds from sale, conveyance or other disposal of real property received by
commission, council or a governing board; authorizing certain governing boards
to enter into lease-purchase agreements in certain instances without commission
approval; eliminating requirement of commission approval for certain real
estate and construction transactions; providing for the approval by the Council
for Community and Technical College Education of acquisitions, bequests,
donations, construction of new buildings, repairs, renovations or lease
payments over the lifetime of the lease which exceed $1 million, if made or
accepted by the institution?s research corporation or an affiliated foundation;
providing additional requirements for governing boards to enter into sale
lease-back transactions; and requiring certain governing boards to provide
certain information to commission.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 534),
and there were--yeas 97, nays 2, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Kelly and Wagner.
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2815) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2857, West Virginia Safer Workplaces Act.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On
page four, section seven, after line four, by inserting a new subdivision,
designated subdivision (2), to read as follows:
?(2)
Any observer of the collection of urine samples shall be of the same sex as the
employee.?
And,
By
renumbering the remaining subdivisions.
??????????? And,
??????????? By amending the title of the bill to
read as follows:
??????????? Com.
Sub. for H. B. 2857 ? ?A Bill? to amend the Code of West Virginia,
1931, as amended, by adding thereto a new article, designated ?21-3E-1,
?21-3E-2, ?21-3E-3, ?21-3E-4, ?21-3E-5, ?21-3E-6, ?21-3E-7, ?21-3E-8, ?21-3E-9,
?21-3E-10, ?21-3E-11, ?21-3E-12, ?21-3E-13, ?21-3E-14, ?21‑3E‑15
and ?21-3E-16, all relating to creating West Virginia Safer Workplaces Act;
permitting employers to test employees and prospective employees for drugs and
alcohol under certain circumstances; providing a short title; defining terms;
declaring public policy; providing for exceptions to the applicability of the
West Virginia Safer Workplaces Act for employers covered by other drug and
alcohol testing statutes; clarifying the right of privacy as defined by the
West Virginia Supreme Court is outweighed by the public policy set forth in the
West Virginia Safer Workplaces Act if an employer complies with the act;
providing for the collection of samples, scheduling of tests and testing
procedures; requiring employers to adhere to the accuracy and fairness
safeguards of the West Virginia Safer Workplaces Act to qualify for the bar from
being subjected to legal claims for acting in good faith on the results of a
drug or alcohol test; providing for an employee?s ability to request split
sample be tested to challenge a positive test result; requiring employers to
pay for certain drug or alcohol tests and transportation expenses, if any;
requiring employer to conduct tests during or immediately before or after a
regular work period; providing that testing by an employer is worked time for
purposes of compensation and benefits for current employees; establishing
responsibility for cost of split sample testing; setting forth testing policy
requirements; requiring confirmatory tests before disciplinary action may be
taken under the West Virginia Safer Workplaces Act; establishing requirements
for confirmatory drug tests; providing for disciplinary procedures; addressing
disciplinary action for sensitive employees; describing sensitive employees;
providing employers who are obligated to perform drug testing under a federal
or state mandated drug testing statute will be required to follow whatever
additional requirements are mandated by those statutes; providing protection
from liability for certain legal claims under certain circumstances; clarifying
that no causes of action for certain acts exists under the West Virginia Safer
Workplaces Act; addressing potential causes of action related to false positive
test results; addressing claims for defamation arising from circumstances
covered by the West Virginia Safer Workplaces Act; clarifying employers are not
required to adopt a drug and alcohol testing policy or to conduct drug or
alcohol tests of employees or prospective employees; providing for
confidentiality and exceptions to confidentiality requirement; addressing
discipline for positive drug or alcohol tests including but not limited to
termination of employment; providing for forfeiture of certain benefits under
certain circumstances including unemployment compensation and workers?
compensation benefits; clarifying that the drug and alcohol testing provisions
of the West Virginia Safer Workplace Act cannot be used to show intoxication
pursuant to section two, article four, chapter twenty-three of this code;
requiring employers to provide notice to employees of the potential forfeiture
of certain benefits; providing employers waive the right to assert eligibility
for benefits is forfeited if notice is not provided; and requiring employers to
have written drug and alcohol testing policies and procedures when implementing
drug and alcohol testing.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 535),
and there were--yeas 82, nays 17, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Baldwin, Caputo, Diserio,
Ferro, Fleischauer, Fluharty, Hornbuckle, Longstreth, Lovejoy, Lynch, Marcum,
Pushkin, Pyles, Rodighiero, Rowe, Thompson and Williams.
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2857) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2897, Raising the amount required for
competitive bidding of construction contracts by the state and its subdivisions.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On
page four, section one, after line seventy-one, by adding a new subsection,
designated subsection (i), to read as follows:
?(i)
The contracting public entity shall not award a contract pursuant to this
section to any bidder that is known to be in default on any monetary obligation
owed to the state or a political subdivision of the state, including, but not
limited to, obligations related to payroll taxes, property taxes, sales and use
taxes, fire service fees, or other fines or fees. Any governmental entity may
submit to the Division of Purchasing information which identifies vendors that
qualify as being in default on a monetary obligation to the entity. The
contracting public entity shall take reasonable steps to verify whether the
lowest qualified bidder is in default pursuant to this subsection prior to
awarding a contract.?
And,
By relettering the remaining
subsections.
And,
By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2897 ?
?A Bill to amend and reenact ?5-22-1 of the Code of West Virginia, 1931, as
amended, to amend and reenact ?8-16-5 of said code; to amend and reenact
?16-12-11 of said code; to amend and reenact ?16-13-3 of said code; to amend
and reenact ?16-13A-7 of said code; to amend and reenact ?21-1D-5; and to amend
and reenact ?21-11-11 of said code, all relating generally to competitive
bidding for public construction contracts; defining the term ?alternates?;
limiting the number of alternates that may be included on any solicitation of
bids for government construction contracts; establishing procedures for
acceptance of alternate bids and determination of the lowest qualified
responsible bidder; providing procedures for the required submission of a list
of subcontractors who will perform more than $25,000 of work on certain
projects; providing procedures for the required submission of a drug-free
workplace affidavit for any solicitation for a public improvement contract; and
providing procedures for the required submission of a contractor?s license
number with certain bid documents; prohibiting public construction contracts
from being awarded to bidders that are in default on monetary obligations owed
to the state or a political subdivision; and exempting competitive bidding requirements
on certain contracts for emergency repairs.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 536),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Kessinger,
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2897) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? H. B. 3018,
Adding definition of correctional employee to the list of persons against whom
an assault is a felony.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On
page one, by striking out everything after the enacting section and inserting
in lieu thereof the following:
?ARTICLE 2. CRIMES AGAINST THE PERSON.
?61-2-10b. Malicious assault; unlawful assault; battery; and assault
on governmental representatives, health care providers, utility workers,
law-enforcement officers, correctional employees and emergency medical
service personnel; definitions; penalties.
(a) For
purposes of this section:
(1) ?Government
representative? means any officer or employee of the state or a political
subdivision thereof, or a person under contract with a state agency or
political subdivision thereof.
(2) ?Health
care worker? means any nurse, nurse practitioner, physician, physician
assistant or technician practicing at, and all persons employed by or under
contract to a hospital, county or district health department, long-term care
facility, physician?s office, clinic or outpatient treatment facility.
(3) ?Emergency
service personnel? means any paid or volunteer firefighter, emergency medical
technician, paramedic, or other emergency services personnel employed by or
under contract with an emergency medical service provider or a state agency or
political subdivision thereof.
(4) ?Utility
worker? means any individual employed by a public utility or electric cooperative
or under contract to a public utility, electric cooperative or interstate
pipeline.
(5) ?Law-enforcement
officer? has the same definition as this term is defined in W.Va. Code
?30-29-1, except for purposes of this section, ?law-enforcement officer? shall
additionally include those individuals defined as ?chief executive? in W.Va.
Code ?30-29-1.
(6) ?Correctional
employee? means any individual employed by the West Virginia Division of
Corrections, the West Virginia Regional Jail Authority, and the West Virginia
Division of Juvenile Services and an employee of an entity providing services
to incarcerated, detained or housed persons pursuant to a contract with such
agencies.
(b) Malicious
assault. ? Any person who maliciously shoots, stabs, cuts or wounds or by
any means causes bodily injury with intent to maim, disfigure, disable or kill
a government representative, health care worker, utility worker, emergency
service personnel, correctional employee or law-enforcement officer
acting in his or her official capacity, and the person committing the malicious
assault knows or has reason to know that the victim is acting in his or her
official capacity is guilty of a felony and, upon conviction thereof, shall be
confined in a correctional facility for not less than three nor more than
fifteen years.
(c)
Unlawful assault. ? Any person who unlawfully but not maliciously shoots,
stabs, cuts or wounds or by any means causes a government representative,
health care worker, utility worker, emergency service personnel, correctional
employee or law-enforcement officer acting in his or her official capacity
bodily injury with intent to maim, disfigure, disable or kill him or her and
the person committing the unlawful assault knows or has reason to know that the
victim is acting in his or her official capacity is guilty of a felony and,
upon conviction thereof, shall be confined in a correctional facility for not
less than two nor more than five years.
(d)
Battery. ? Any person who unlawfully, knowingly and intentionally makes
physical contact of an insulting or provoking nature with a government
representative, health care worker, utility worker, emergency service
personnel, correctional employee or law-enforcement officer acting in
his or her official capacity and the person committing the battery knows or has
reason to know that the victim is acting in his or her official capacity, or
unlawfully and intentionally causes physical harm to that person acting in such
capacity and the person committing the battery knows or has reason to know that
the victim is acting in his or her official capacity, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than $500 or
confined in jail not less than one month nor more than twelve months or both
fined and confined. If any person commits a second such offense, he or she is
guilty of a felony and, upon conviction thereof, shall be fined not more than
$1,000 or imprisoned in a state correctional facility not less than one year
nor more than three years, or both fined and imprisoned. Any person who commits
a third violation of this subsection is guilty of a felony and, upon conviction
thereof, shall be fined not more than $2,000 or imprisoned in a state
correctional facility not less than two years nor more than five years, or both
fined and imprisoned.
(e) Assault. ? Any person who
unlawfully attempts to commit a violent injury to the person of a government
representative, health care worker, utility worker, emergency service
personnel, correctional employee or law-enforcement officer, acting in
his or her official capacity and the person committing the battery knows or has
reason to know that the victim is acting in his or her official capacity, or
unlawfully commits an act which places that person acting in his or her
official capacity in reasonable apprehension of immediately receiving a violent
injury and the person committing the battery knows or has reason to know that
the victim is acting in his or her official capacity, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail for not
less than twenty-four hours nor more than six months, fined not more than $200,
or both fined and confined.
?(f) Any person convicted of any crime set
forth in this section who is incarcerated in a facility operated by the West
Virginia Division of Corrections or the West Virginia Regional Jail Authority,
or is in the custody of the Division of Juvenile Services and is at least
eighteen years of age or subject to prosecution as an adult, at the time of
committing the offense and whose victim is a correctional employee may not be
sentenced in a manner by which the sentence would run concurrent with any other
sentence being served at the time the offense giving rise to the conviction of
a crime set forth in this section was committed.?
And,
??????????? By amending the title of the bill to
read as follows:
H. B. 3018 ? ?A Bill to amend
and reenact ?61-2-10b of the Code of West Virginia, 1931, as amended, relating
to crimes against the person generally; defining correctional employee;
including correctional employees as persons to whom the criminal penalties for
malicious assault, unlawful assault, battery and assault in this section apply;
requiring certain sentences to be imposed consecutively; and establishing
penalties.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 537),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (H. B. 3018) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 3093, Establishing Broadband Enhancement and
Expansion Policies.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
On
page one, by striking out everything after the enacting clause and inserting in
lieu thereof the following:
?That ?31-15C-1, ?31-15C-2,
?31-15C-3, ?31-15C-4, ?31-15C-5, ?31-15C-6, ?31-15C-7, ?31-15C-8, ?31-15C-9,
?31-15C-12 and ?31-15C-13 of the Code of West Virginia, 1931, as amended, be
repealed; that ?12-6C-11 of said code be amended and reenacted; that ?31-15-8
of said code be amended and reenacted; and that said code be amended by adding
thereto a new chapter, designated ?31G-1-1, ?31G-1-2, ?31G-1-3, ?31G-1-4,
?31G-1-5, ?31G-1-6, ?31G-1-7, ?31G-1-8, ?31G-1-9, ?31G-1-10, ?31G-1-11,
?31G-1-12, ?31G-1-13; ?31G-1-14, ?31G-2-1, ?31G-2-2, ?31G-2-3, ?31G-2-4,
?31G-2-5, ?31G-2-6, ?31G-2-7, ?31G-2-8, ?31G-2-9, ?31G-2-10, ?31G-2-11,
?31G-2-12, ?31G-2-13; ?31G-2-14, ?31G-2-15, ?31G-2-16, ?31G-2-17, ?31G-2-18,
?31G-2-19, ?31G-2-20, ?31G-2-21, ?31G-2-22, ?31G-2-23, ?31G-2-24, ?31G-2-25,
?31G-2-26, ?31G-2-27, ?31G-3-1, ?31G-3-2, ?31G-4-1, ?31G-4-2 and ?31G-4-3, all
to read as follows:
CHAPTER 12. PUBLIC
MONEYS AND SECURITIES.
ARTICLE 6C. WEST VIRGINIA BOARD OF TREASURY
INVESTMENTS.
?12-6C-11. Legislative findings; loans for industrial development;
availability of funds and interest rates.
(a) The
Legislature finds and declares that the citizens of the state benefit from the
creation of jobs and businesses within the state; that business and industrial
development loan programs provide for economic growth and stimulation within
the state; that loans from pools established in the Consolidated Fund will
assist in providing the needed capital to assist business and industrial
development; and that time constraints relating to business and industrial
development projects prohibit duplicative review by both the Board and West
Virginia Economic Development Authority Board. The Legislature further finds
and declares that an investment in the West Virginia Enterprise Capital Fund,
LLC, of moneys in the Consolidated Fund as hereinafter provided will assist in
creating jobs and businesses within the state and provide the needed risk
capital to assist business and industrial development. This section is enacted
in view of these findings.
(b)
The West Virginia Board of Treasury Investments shall make available, subject
to a liquidity determination, in the form of a revolving loan, up to $175
million from the Consolidated Fund to loan the West Virginia Economic
Development Authority for business or industrial development projects
authorized by section seven, article fifteen, chapter thirty-one of this code
and to consolidate existing loans authorized to be made to the West Virginia
Economic Development Authority pursuant to this section and pursuant to section
twenty, article fifteen, chapter thirty-one of this code which authorizes a
$175 million revolving loan and article eighteen-b of said chapter which
authorizes a $50 million investment pool: Provided, That the West
Virginia Economic Development Authority may not loan more than $15 million for
any one business or industrial development project. The revolving loan
authorized by this subsection shall be secured by one note at a variable
interest rate equal to the twelve-month average of the board?s yield on its
cash liquidity pool. The rate shall be set on the first day of July 1
and adjusted annually on the same date. The maximum annual adjustment may not
exceed one percent. Monthly payments made by the West Virginia Economic
Development Authority to the board shall be calculated on a 120-month
amortization. The revolving loan is secured by a security interest that pledges
and assigns the cash proceeds of collateral from all loans under this revolving
loan pool. The West Virginia Economic Development Authority may also pledge as
collateral certain revenue streams from other revolving loan pools which source
of funds does not originate from federal sources or from the board.
?(c) The outstanding principal balance of the
revolving loan from the board to the West Virginia Economic Development
Authority may at no time exceed one hundred three percent of the aggregate
outstanding principal balance of the business and industrial loans from the
West Virginia Economic Development Authority to economic development projects
funded from this revolving loan pool. The independent audit of the West
Virginia Economic Development Authority financial records shall annually
certify that one hundred three percent requirement.
(d) The
interest rates and maturity dates on the loans made by the West Virginia
Economic Development Authority for business and industrial development projects
authorized by section seven, article fifteen, chapter thirty-one of this code
shall be at competitive rates and maturities as determined by the West Virginia
Economic Development Authority Board.
(e) Any
and all outstanding loans made by the West Virginia Board of Treasury
Investments, or any predecessor entity, to the West Virginia Economic
Development Authority are refundable by proceeds of the revolving loan
contained in this section and the board shall make no loans to the West
Virginia Economic Development Authority pursuant to section twenty, article
fifteen, chapter thirty-one of this code or article eighteen-b of said chapter.
(f) The
directors of the board shall bear no fiduciary responsibility with regard to
any of the loans contemplated in this section.
(g)
Subject to cash availability, the board shall make available to the West
Virginia Economic Development Authority, from the Consolidated Fund, a
nonresource nonrecourse loan in an amount up to $25 million, for the
purpose of the West Virginia Economic Development Authority making a loan or
loans from time to time to the West Virginia Enterprise Advancement
Corporation, an affiliated nonprofit corporation of the West Virginia Economic
Development Authority. The respective loans authorized by this subjection
subsection by the board to the West Virginia Economic Development
Authority to the West Virginia Enterprise Advancement Corporation shall each be
evidenced by one note and shall each bear interest at the rate of three percent
per annum. The proceeds of any and all loans made by the West Virginia Economic
Development Authority to the West Virginia Enterprise Advancement Corporation
pursuant to this subsection shall be invested by the West Virginia Enterprise
Corporation in the West Virginia Enterprise Capital Fund, LLC, the manager of
which is the West Virginia Enterprise Advancement Corporation. The loan to West
Virginia Economic Development Authority authorized by this subsection shall be
nonrevolving, and advances under the loan shall be made at times and in amounts
requested or directed by the West Virginia Economic Development Authority, upon
reasonable notice to the board. The loan authorized by this subsection is not
subject to or included in the limitations set forth in subsection (b) of this
section with respect to the $15 million limitation for any one business or
industrial development project and limitation of one hundred three percent of
outstanding loans, and may not be included in the revolving fund loan principal
balance for purposes of calculating the loan amortization in subsection (b) of
this section. The loan authorized by this subsection to the West Virginia
Economic Development Authority shall be classified by the board as a long-term
fixed income investment, shall bear interest on the outstanding principal
balance of the loan at the rate of three percent per annum payable annually on
or before June 30 of each year, and the principal of which shall be repaid no
later than June 30, 2022, in annual installments due on or before June 30 of
each year. The annual installments, which need not be equal shall commence no
later than June 30, 2005, in annual principal amounts agreed upon between the
board and the West Virginia Economic Development Authority. The loan authorized
by this subsection shall be nonrecourse and shall be payable by the West Virginia
Economic Development Authority solely from amounts or returns received by the
West Virginia Economic Development Authority in respect of the loan authorized
by this subsection to the West Virginia Enterprise Advancement Corporation,
whether in the form of interest, dividends, realized capital gains, return of
capital or otherwise, in all of which the board shall have a security interest
to secure repayment of the loan to the West Virginia Economic Development
Authority authorized by this subsection. Any and all loans from the West
Virginia Enterprise Advancement Corporation made pursuant to this subsection
shall also bear interest on the outstanding principal balance of the loan at
the rate of three percent per annum payable annually on or before June 30 of
each year, shall be nonrecourse and shall be payable by the West Virginia
Enterprise Advancement Corporation solely from amounts of returns received by
the West Virginia Enterprise Advancement Corporation in respect to its
investment in the West Virginia Enterprise Capital Fund, LLC, whether in the
form of interest, dividends, realized capital gains, return of capital or
otherwise, in all of which that board shall have a security interest to secure
repayment of the loan to the West Virginia Economic Development Authority
authorized by this subsection. In the event the amounts or returns received by
the West Virginia Enterprise Corporation in respect to its investment in the
West Virginia Enterprise Capital Fund, LLC, are not adequate to pay when due the
principal or interest installments, or both, with respect to the loan
authorized by this subsection by the board to the West Virginia Economic
Development Authority, the principal or interest, or both, as the case may be,
due on the loan made to the West Virginia Economic Development Authority
pursuant to this subsection shall be deferred and any and all past due
principal and interest payments shall promptly be paid to the fullest extent
possible upon receipt by the West Virginia Enterprise Advancement Corporation
of moneys in respect to its investments in the West Virginia Enterprise Capital
Fund, LLC. The directors or the board shall bear no fiduciary responsibility as
provided in section thirteen of this article with regard to the loan authorized
by this subsection.
(h)
Notwithstanding any provision in this code to the contrary, subject to a
liquidity determination and cash availability, the board shall make available
to the West Virginia Economic Development Authority, from the Consolidated
Fund, in the form of a nonrecourse revolving loan, $50 million, for the purpose
of insuring the payment or repayment of all or any part of the principal, the
redemption or prepayment premiums or penalties on, and interest on any form of
debt instrument entered into by an enterprise, public body or authority of the
state with a financial institution, including, but not limited to, banks,
insurance companies and other institutions in the business of lending money, as
authorized and as set forth in section eight, article fifteen, chapter
thirty-one of this code, but only for the purpose of providing insurance on
such debt instruments relating solely to the deployment of broadband under said
section: Provided, That the West
Virginia Economic Development Authority may not insure more than $10 million
for any one enterprise, public body or authority of the state in any single
calendar year. The loan authorized by this subsection may not be included in
the revolving fund loan principal balance for purposes of calculating the loan
amortization in subsection (b) of this section. The loan authorized by this
subsection shall be classified by the board as a long-term fixed income
investment, and shall bear interest on the outstanding principal balance of the
loan at a variable interest rate equal to the twelve-month average of the board?s
yield on its cash liquidity pool. The rate shall be set on July 1, 2017, and
adjusted quarterly during each year thereafter. The maximum annual adjustment
may not exceed one percent. Quarterly, the West Virginia Economic Development
Authority shall make a payment sufficient to pay in full all accrued interests
on the loan for the prior quarter. The loan authorized by this subsection is
nonrecourse and is payable by the West Virginia Economic Development Authority
solely from moneys received by the West Virginia Economic Development Authority
in respect to insured debt instruments relating to providing broadband service
under section eight, article fifteen, chapter thirty-one of this code. Upon
payment in full of any said insured debt instruments, the West Virginia
Economic Development Authority shall reduce the outstanding balance of the loan
by a like amount. Additionally, quarterly, the West Virginia Economic
Development Authority shall determine the outstanding balance of all such
insured debt instruments and shall accordingly adjust the outstanding balance
of the loan to equal the outstanding obligations of the West Virginia Economic
Development Authority for all said insured debt instruments. The loan is hereby
secured by a security interest that pledges and assigns the cash proceeds of
all collateral securing all insurance agreements entered into by the authority
respecting debt instruments relating to the deployment of broadband under said
section. In the event moneys received by the West Virginia Economic Development
Authority respecting any individual insured debt instrument relating to
providing broadband service under said section is insufficient to pay when due
the principal or interest installments, or both, with respect to the loan
authorized by this subsection by the board to the authority, the principal or
interest, or both, as the case may be, due on the loan made to the authority
pursuant to this subsection shall be deferred and any and all past-due principal
and interest payments shall promptly be paid to the fullest extent possible
upon receipt by the authority of all moneys respecting said debt instruments.
The directors of the board bear no fiduciary responsibility as provided in
section thirteen of this article with regard to the loan authorized by this
subsection.
CHAPTER 31.
CORPORATIONS.
ARTICLE 15. WEST VIRGINIA ECONOMIC
DEVELOPMENT AUTHORITY.
?31-15-8. Insurance fund.
(a)
There is hereby created an insurance fund which shall be a continuing, nonlapsing,
revolving fund that consists of:
(1)
Moneys appropriated by the state to the insurance fund;
(2)
Premiums, fees and any other amounts received by the authority with respect to
financial assistance provided by the authority from the insurance fund;
(3) Upon
the satisfaction of any indebtedness or other obligation owed on any property
held or acquired by the authority, such proceeds as designated by the authority
from the sale, lease or other disposition of such property;
(4)
Income from investments made from moneys in the insurance fund; and
(5) Any
other moneys transferred to the insurance fund or made available to it for the
purposes described under this section, under this article or pursuant to any
other provisions of this code.
Subject
to the provisions of any outstanding insurance agreements entered into by the
authority under this section, the authority may enter into covenants or
agreements with respect to the insurance fund, and establish accounts within
the insurance fund which may be used to implement the purposes of this article.
If the authority elects to establish separate accounts within the insurance
fund, the authority may allocate its revenues and receipts among the respective
accounts in any manner the authority considers appropriate.
If the
authority at any time finds that more money is needed to keep the reserves of
the insurance fund at an adequate level, the authority, with the consent of the
chairman, shall send a written request to the Legislature for additional funds.
(b) The
insurance fund shall be used for the following purposes by the authority to
financially assist projects so long as such financial assistance will, as
determined by the authority, fulfill the public purposes of this article:
(1) To
insure the payment or repayment of all or any part of the principal of,
redemption or prepayment premiums or penalties on, and interest on bonds or
notes whether issued under the provisions of this article or under the
Industrial Development and Commercial Development Bond Act, the West Virginia
Hospital Finance Authority Act or, with respect to health care facilities only,
article thirty-three, chapter eight of this code;
(2) To
insure the payment or repayment of all or any part of the principal of,
redemption or prepayment premiums or penalties on, and interest on any
instrument executed, obtained or delivered in connection with the issuance and
sale of bonds or notes whether under the provisions of this article or
under the Industrial Development and Commercial Development Bond Act, the West
Virginia Hospital Finance Authority Act or, with respect to health care
facilities only, article thirty-three, chapter eight of this code;
(3) To
insure the payment or repayment of all or any part of the principal of,
prepayment premiums or penalties on, and interest on any form of debt
instrument entered into by an enterprise, public body or authority of the state
with a financial institution, including, but not limited to, banks, insurance
companies and other institutions in the business of lending money, which debt
instruments shall include, but not be limited to, instruments relating to loans
for working capital and to the refinancing of existing debt: Provided,
That nothing contained in this subsection or any other provision of this
article shall be construed as permitting the authority to insure the
refinancing of existing debt except when such insurance will result in the
expansion of the enterprise whose debt is to be refinanced or in the creation
of new jobs;
(4) To
pay or insure the payment of any fees or premiums necessary to obtain
insurance, guarantees, letters of credit or other credit support from any
person or financial institution in connection with financial assistance
provided by the authority under this section; and
(5) To
pay any and all expenses of the authority, including, but not limited to:
(i) Any
and all expenses for administrative, legal, actuarial, and other services related
to the operation of the insurance fund; and
(ii) All
costs, charges, fees and expenses of the authority related to the authorizing,
preparing, printing, selling, issuing and insuring of bonds or notes
(including, by way of example, bonds or notes, the proceeds of which are used
to refund outstanding bonds or notes) and the funding of reserves; and
(6)
To insure, for up to twenty years, the payment or repayment of all or any part
of the principal of and interest on any form of debt instrument entered into by
an enterprise, public body or authority of the state with a financial
institution, including, but not limited to, banks, insurance companies and
other institutions in the business of lending money, which debt instruments are
to be solely for capital costs relating to:
(i)
Providing broadband service, as defined in section one, article one, chapter
thirty-one-g of this code, to a household or business located in an unserved
area, as defined in section two of said article, or in an area with access to
Internet service, by wireline or fixed wireless technology, but that fifteen
percent or more of households and businesses in the area are served by Internet
service with an actual downstream data rate less than ten megabits per second
and an upstream data rate less than one megabit per second, and no part of the
area has three or more wireline or fixed wireless broadband service providers;
or
(ii)
Building a segment of a telecommunications network that links a network
operator?s core network to a local network plant that serves either an unserved
area, as defined in section two, article one, chapter thirty-one-g of this
code, or an area in which no more than two wireline providers are operating.
The
authority may not insure the payment or repayment of any part of the principal
of and interest on any form of debt instrument under this subdivision, unless
the participating financial institution provides written certification to the
authority that, but for the authority?s insuring the debt instrument, the financial
institution would not otherwise make the loan based solely on the
creditworthiness of the loan applicant: Provided,
That nothing contained in this subsection or any other provision of this
article may be construed as permitting the authority to insure the refinancing
of existing debt.
Upon the filing of an application for
loan insurance under this subsection, the broadband provider shall cause to be
published as a Class II legal advertisement in compliance with article three,
chapter fifty-nine of this code, notice of the filing of the application and
that the authority may approve the same unless within ten business days after
completion of publication a written objection is received by the authority from
a person or persons challenging that the proposed broadband project does not
satisfy the provisions of this subsection. The publication area for such notice
is to be the county or counties in which any portion of the proposed broadband
project is to be constructed. The notice shall be in such form as the authority
shall direct, and shall include a map of the area or areas to be served by the
proposed broadband project.? The
applicant shall also cause to be mailed by first class, on or before the first
day of publication of the notice, a copy of the notice to all known current
providers of broadband service within the area proposed to be served. If a
challenge under this paragraph is timely received by the authority, the
authority shall advise the Broadband Enhancement Council, established in
article one of chapter thirty-one-g of this code, in writing within five
business days. The council shall set the matter for hearing on a date within
thirty days of receipt of notice from the authority. The Broadband Enhancement
Council shall issue a decision on whether the proposed project satisfies the
requirements of this subsection or not within thirty days of completion of such
hearing. Any party participating in said hearing may appeal the council?s
decision within thirty days of the issuance of said decision to the Circuit
Court of Kanawha County.? This provision
shall apply to all applicants except to those broadband providers that plan on
providing a downstream data rate of at least one gigabyte per second to the end
user.?
?(c) The Except as relating to insured
portions of debt instruments under subdivision (6), subsection (b) of this
section, the total aggregate amount of insurance from the insurance fund
with respect to the insured portions of principal of bonds or notes or other
instruments may not exceed at any time an amount equal to five times the
balance in the insurance fund.
(d) The
authority may, in its sole and absolute discretion, set the premiums and fees
to be paid to it for providing financial assistance under this section. The
premiums and fees set by the authority shall be payable in the amounts, at the
time, and in the manner that the authority, in its sole and absolute
discretion, requires. The premiums and fees need not be uniform among
transactions, and may vary in amount: (1) Among transactions; and (2) at
different stages during the terms of transactions.
(e) The
authority may, in its sole and absolute discretion, require the security it
believes sufficient in connection with its insuring of the payment or repayment
of any bonds, notes, debt or other instruments described in subdivisions (1), (2),
(3) and (4), subsection (b) of this section.
(f) The
authority may itself approve the form of any insurance agreement entered into
under this section or may authorize the chairman or his or her designee
to approve the form of any such agreement. Any payment by the authority under
an agreement entered into by the authority under this section shall be made at
the time and in the manner that the authority, in its sole and absolute
discretion, determines.
(g) The
obligations of the authority under any insurance agreement entered into
pursuant to this article shall not constitute a debt or a pledge of the faith
and credit or taxing powers of this state or of any county, municipality or any
political subdivision of this state for the payment of any amount due
thereunder or pursuant thereto, but the obligations evidenced by such insurance
agreement shall be payable solely from the funds pledged for their payment. All
such insurance agreements shall contain on the face thereof a statement to the
effect that such agreements and the obligations evidenced thereby are not debts
of the state or any county, municipality or political subdivision thereof but
are payable solely from funds pledged for their payment.
chapter
31g. broadband enhancement and expansion policies.
ARTICLE 1. Broadband enhancement
council.
?31G-1-1. Legislative findings and
purpose.
The Legislature finds as follows:
(1) That it is a primary goal of the Governor, the Legislature and
the citizens of this state, by the year 2020, to make every municipality,
community, and rural area in this state, border to border, accessible to
Internet communications through the expansion, extension and general
availability of broadband services and technology.
(2) That although broadband access has been extended to many of
West Virginia?s cities, towns, and other concentrated population areas, some
areas of the state, mostly rural, remain unserved.
(3) That the issues which have hindered the provision of broadband
access to rural areas of the state especially disadvantage the elderly and
low-income households.
(4) That fair and equitable access to twenty-first century
technology is essential to maximize the functionality of educational resources
and educational facilities that enable our children to receive the best of
future teaching and learning is essential to the future development of this
state. A quality educational system of the twenty-first century should have
access to the best technology tools and processes. Administrators should have
the electronic resources to monitor student performance, to manage data, and to
communicate effectively. In the classroom, every teacher in every school should
be provided with online access to and the ability to deliver the best available
educational technology resources to the students of West Virginia. Schools of
the twenty-first century require facilities that accommodate changing
technologies.
(5) Accordingly, it is the purpose of the Legislature to provide
for the development of policies, plans, processes and procedures to be employed
and dedicated to extending broadband access to West Virginians, and to their
families, by removing restraint on the development of those services and for
encouraging and facilitating the construction of the necessary infrastructure
to meet their needs and demands.
?31G-1-2. Definitions.
For the purposes of this article:
(1) ?Broadband? or ?broadband service? means any service providing
advanced telecommunications capability with the same downstream data rate and
upstream data rate as is specified by the Federal Communications Commission and
that does not require the end-user to dial up a connection, that has the
capacity to always be on, and for which the transmission speeds are based on
regular available bandwidth rates, not sporadic or burstable rates, with
latency suitable for real-time applications and services such as voice-over
Internet protocol and video conferencing, and with monthly usage capacity
reasonably comparable to that of residential terrestrial fixed broadband
offerings in urban areas: Provided, That as the Federal Communications
Commission updates the downstream data rate and the upstream data rate the
council will publish the revised data rates in the State Register within sixty
days of the federal update.
(2) ?Council? means the Broadband Enhancement Council.
(3) ?Downstream data rate? means the transmission speed from the
service provider source to the end-user.
(4) ?Internet protocol address? or ?IP address? means a unique
string of numbers separated by periods that identifies each computer using the
Internet Protocol to communicate over a network.
(5) ?Upstream data rate? means the transmission speed from the
end-user to the service provider source.
(6) ?Unserved area? means a community that has no access to
broadband service.
?31G-1-3. Broadband Enhancement
Council; members of council; administrative support.
(a) The Broadband Enhancement Council is hereby established and
continued. The current members, funds, and personnel shall continue in effect
and be wholly transferred; except as may be hereinafter provided. With regard
to the terms of the public members appointed under subdivision five of
subsection (d) of this section, at the next regular meeting of the council
following July 1, 2017, the currently serving public members shall draw by lot
for the length of their terms, three members to serve for one additional year,
three members to serve for two additional years and the last three members to
serve for three additional years, with all public members in future to serve
for the duration of the term described below.
(b) The council is a governmental instrumentality of the state.
The exercise by the council of the powers conferred by this article and the carrying
out of its purpose and duties are considered and held to be, and are hereby
determined to be, essential governmental functions and for a public purpose.
The council is created under the Department of Commerce for administrative,
personnel and technical support services only.
(c) The council shall consist of thirteen voting members,
designated as follows:
(1) The Secretary of Commerce or his or her designee;
(2) The Chief Technology Officer or his or her designee;
(3) The Vice Chancellor for Administration of the Higher Education
Policy Commission or his or her designee;
(4) The State Superintendent of Schools or his or her designee;
and
(5) Nine public members that shall serve three year terms from the
date of their appointment and are appointed by the Governor with the advice and
consent of the Senate, as follows:
(i) One member representing users of large amounts of broadband
services in this state;
(ii) One member from each congressional district representing
rural business users in this state;
(iii) One member from each congressional district representing
rural residential users in this state;
(iv) One member representing urban business users in this state;
and
(v) One member representing urban residential users in this state.
(6) In addition to the thirteen voting members of the council, the
President of the Senate shall name two senators from the West Virginia Senate,
one from each party, and the Speaker of the House shall name two delegates from
the West Virginia House of Delegates, one from each party, each to serve in the
capacity of an ex officio, nonvoting advisory member of the council.
(d) The Secretary of Commerce shall chair the first meeting at
which time a chair and vice chair shall be elected from the members of the
council. In the absence of the chair, the vice chair shall serve as chair. The
council shall appoint a secretary-treasurer who need not be a member of the
council and who, among other tasks or functions designated by the council,
shall keep records of its proceedings.
(e) The council may appoint committees or subcommittees to
investigate and make recommendations to the full council. Members of these
committees or subcommittees need not be members of the council.
(f) Seven voting members of the council constitute a quorum and
the affirmative vote of a simple majority of those members present is necessary
for any action taken by vote of the council.
(g) The gubernatorial appointed members shall be deemed part-time
public officials, and may pursue and engage in another business or occupation
or gainful employment. Any person employed by, owning an interest in or
otherwise associated with a broadband deployment project, project sponsor or
project participant may serve as a council member and is not disqualified from
serving as a council member because of a conflict of interest prohibited under
section five, article two, chapter six-b of this code and is not subject to
prosecution for violation of said section when the violation is created solely
as a result of his or her relationship with the broadband deployment project,
project sponsor or project participant so long as the member recuses himself or
herself from board participation regarding the conflicting issue in the manner
set forth in section five, article two, chapter six-b of this code and the
legislative rules promulgated by the West Virginia Ethics Commission.
(h) No member of the council who serves by virtue of his or her
office may receive any compensation or reimbursement of expenses for serving as
a member. The public members and members of any committees or subcommittees are
entitled to be reimbursed for actual and necessary expenses incurred for each
day or portion thereof engaged in the discharge of his or her official duties
in a manner consistent with the guidelines of the Travel Management Office of
the Department of Administration.
(i) No person is subject to antitrust or unfair competition
liability based on membership or participation in the council, which provides
an essential governmental function and enjoys state action immunity.
?31G-1-4. Powers and duties of the council generally.
(a) The council shall:
(1) Explore any and all ways to expand access to broadband
services, including, but not limited to, middle mile, last mile and wireless
applications;
(2) Gather data regarding the various speeds provided to consumers
in comparison to what is advertised. The council may request the assistance of
the Legislative Auditor in gathering this data;
(3) Explore the potential for increased use of broadband service
for the purposes of education, career readiness, workforce preparation and
alternative career training;
(4) Explore ways for encouraging state and municipal agencies to
expand the development and use of broadband services for the purpose of better
serving the public, including audio and video streaming, voice-over Internet
protocol, teleconferencing and wireless networking; and
(5) Cooperate and assist in the expansion of electronic
instruction and distance education services.
(b) In addition to the powers set forth elsewhere in this article,
the council is hereby granted, has and may exercise the powers necessary or
appropriate to carry out and effectuate the purpose and intent of this article,
as enumerated herein. The council shall have the power and capacity to:
(1) Provide consultation services to project sponsors in
connection with the planning, acquisition, improvement, construction or
development of any broadband deployment project;
(2) Promote awareness of public facilities that have community
broadband access that can be used for distance education and workforce
development;
(3) Advise on deployment of e-government portals such that all
public bodies and political subdivisions have homepages, encourage one-stop
government access and that all public entities stream audio and video of all
public meetings;
(4) Make and execute contracts, commitments and other agreements
necessary or convenient for the exercise of its powers, including, but not
limited to, the hiring of consultants to assist in the mapping of the state and
categorization of areas within the state;
(5) Acquire by gift or purchase, hold or dispose of real property
and personal property in the exercise of its powers and performance of its
duties as set forth in this article;
(6) Receive and dispense funds appropriated for its use by the
Legislature or other funding sources or solicit, apply for and receive any
funds, property or services from any person, governmental agency or
organization to carry out its statutory duties;
(7) to oversee the use of conduit installed pursuant to section
two of article three of this chapter; and to
(8) Perform any and all other activities in furtherance of its
purpose.
(c) The council shall exercise its powers and authority to advise
and make recommendations to the Legislature on bringing broadband service to
unserved and underserved areas, as well as to propose statutory changes that
may enhance and expand broadband in the state.
(d) The council shall report to the Joint Committee on Government
and Finance on or before January 1 of each year. The report shall include the
action that was taken by the council during the previous year in carrying out
the provisions of this article. The council shall also make any other reports
as may be required by the Legislature or the Governor.
?31G-1-5. Creation of the Broadband
Enhancement Fund.
All moneys collected by the council, which may, in addition to
appropriations, include gifts, bequests or donations, shall be deposited in a
special revenue account in the State Treasury known as the Broadband
Enhancement Fund. The fund shall be administered by and under the control of
the Secretary of the Department of Commerce. Expenditures from the fund shall
be for the purposes set forth in this article and are not authorized from collections
but are to be made only in accordance with appropriation by the Legislature and
in accordance with the provisions of article two, chapter eleven-b of this
code.
?31G-1-6. Mapping of areas within
state.
(a) Based on its analysis of data, broadband demand, and other
relevant information, the council shall establish a mapping of broadband
services in the state. The council shall publish an annual assessment and map
of the status of broadband, including specifically designations of unserved and
underserved areas of the state.
(b) To the extent possible, and subject to limitations contained
in subsection (f) of this section, the council may additionally establish an
interactive public map reflecting estimated downstream data rate and upstream
data rate in a particular region, area, community, street or location. Any such
mapping may only specify data rates at a particular street address or physical
location, and shall not make public the IP address or the name of the specific
individual at such location. Such mapping may also contain data concerning
capacity, based upon fiber count.
(c) The mapping provided for in this section may be based on
information collected or received by the council, including but not limited to,
data collected from (1) state and federal agencies or entities that collect
data on broadband services; (2) industry provided information; and (3) consumer
data provided to the council pursuant to section nine of this article.
(d) Any entity that has received or hereinafter receives state or
Federal moneys, and which has used those moneys to install infrastructure used
for broadband services, shall furnish detailed information concerning the
location, type, and extent of such infrastructure to the council for use in
mapping.
(e) The mapping and designations provided for under this section
may be revised on a continuing basis by the council as warranted by the data
and information provided.
(f) In addition to the provisions of section thirteen of this
article, the mapping of broadband services may exclude from public
accessibility and availability: (1) The location or identity of any critical
infrastructure used by public or private entities in furtherance of their
internet services; (2) personal name and personal IP addresses connected with
particular data rates; and (3) information designated as confidential for
public security reasons by either state or federal homeland security agencies: Provided, That it shall be duty of the
public and private entities to make the council aware of such confidential
designation: Provided, however, That
unless the council determines good cause exists, the actual or estimated
upstream and downstream data rates of an area or region of the state shall not
be excluded from public or private availability.
?31G-1-7. Retention of outside
expert consultant.
(a) In order to assist the council with the highly technical task
of categorizing the areas of the state, the council may retain outside expert
consultants to assist in the purposes of this article. The experts may assist
the Council to map the state on the basis of broadband availability, to
evaluate and categorize data, to assist in public outreach and education in order
to stimulate demand and to provide other support and assistance as necessary to
accomplish the purposes of this article.
(b) The retention and contracting of all expert consultants shall
be transparent, including specifically, making publicly available any
contracts, retention agreements, payments and invoicing for services.
?31G-1-8. Public awareness and
education.
In order to implement and carry out the intent of this article,
the council may take such actions as it deems necessary or advisable in order
to increase awareness of issues concerning broadband services and to educate
and inform the public.
?31G-1-9. Collection of data.
(a) In order to ascertain, categorize, analyze, map, and update
the status of broadband in the state, as well as to enable the council to make
informed policy and legislative recommendations, the council may establish a
voluntary data collection program. The program may include voluntarily
submitted data from internet service providers, including any home or region
data rate meters utilized by the provider. The program may also utilize and
collect voluntarily submitted data rate information submitted by any person
reflecting the person?s personal data rate at a particular IP address. This
personal data rate may be based upon a web-based test or analysis program.
(b) Any and all data collected by the Council shall not be deemed
public information and is not subject to public release or availability
pursuant to chapter twenty-nine-b of this code.
(c) Any data collection program established by the council shall:
(1) Make clear to those providers or persons submitting
information that the data rate speed may become public, including specific
reference to the person?s physical address;
(2) Make clear this is a voluntary data collection program and
that submission of information shall be deemed consent to use and make public
such data rate information; and
(3) Not include any person?s personal web history or search
information, or otherwise publicly identify the person?s name in connection
with an IP address or physical address.
(d) The council may establish guidelines and additional rules
governing a data collection program through the legislative rulemaking process,
pursuant to the provisions of article three, chapter twenty-nine-a of this
code.
?31G-1-10. Pilot Project for cooperatives by political
subdivisions.
(a) Notwithstanding any provision in the code to the contrary, the
council may create guidelines and recommend to the legislature a pilot project
for no more than three municipalities or counties, either individually or in
conjunction with one another, to establish non-profit cooperative associations
to provide high-speed internet and broadband services.
(b) Nothing herein shall preclude or prohibit the establishment of
a cooperative association by non-political subdivisions outside the purview or
authority of the council. It is not a requirement that a cooperative
association established under article two of this chapter seek approval or
guidance from the council, and such cooperative associations established under
article two of this chapter shall not be under the authority of, nor subject
to, the council.
?31G-1-11. Voluntary donation and easement programs.
(a) The council shall create guidelines for, and recommend to the
Legislature a means of implementing a voluntary donation program to allow for
pipeline, railroad, and other similar structures and rights-of-way in the state
to be donated to the state for use by public or private entities to facilitate
broadband service and availability through placement of fiber.
(b) The council shall create guidelines for, and recommend to the
Legislature a means of implementing a program to allow for an easement program
to be established to allow public or private entities to facilitate broadband
service and availability through placement of fiber.
?31G-1-12. Grants.
In furtherance of the purposes of this article, the council is
permitted to seek non-state funding and grants. The council may utilize funding
and grants to support the responsibilities, initiatives and projects set forth
this article. The council may additionally disburse such monies to fund
projects and initiatives in furtherance of the enhancement and expansion of
broadband services in this state, and the other purposes of this article.
?31G-1-13. Protection of proprietary
business information.
(a) Broadband deployment information provided to the council or
its consultants and other agents, including, but not limited to, physical plant
locations, subscriber levels, and market penetration data, constitutes
proprietary business information and, along with any other information that
constitutes trade secrets, shall be exempt from disclosure under the provisions
of chapter twenty-nine-b of this code: Provided, That the information is
identified as confidential information when submitted to the council.
(b) Trade secrets or proprietary business information obtained by
the council from broadband providers and other persons or entities shall be
secured and safeguarded by the state. Such information or data shall not be
disclosed to the public or to any firm, individual or agency other than
officials or authorized employees of the state. Any person who makes any
unauthorized disclosure of such confidential information or data is guilty of a
misdemeanor and, upon conviction thereof, may be fined not more than $5,000 or
confined in a correctional facility for not more than one year, or both.
(c) The official charged with securing and safeguarding trade
secrets and proprietary data for the council is the Secretary of
Administration, who is authorized to establish and administer appropriate
security measures. The council chair shall designate two additional persons to
share the responsibility of securing trade secrets or proprietary information.
No person will be allowed access to trade secrets or proprietary information
without written approval of a minimum of two of the three authorized persons
specified above.
?31G-1-14. Legislative rule-making
authority.
In order to implement and carry out the intent of this article,
the Secretary of the Department of Commerce, at the direction and
recommendation of the council, may propose rules for legislative approval,
pursuant to the provisions of article three, chapter twenty-nine-a of this
code.
article 2. cooperative
associations.
?31G-2-1. Definitions.
As used in this article:
(1) ?Cooperative association? or ?association? means any
corporation organized under this article. Each association shall also comply
with the requisite business corporation provisions of chapter thirty-one-d or
thirty-one-f of this code, or the nonprofit corporation provisions of chapter
thirty-one-e of this code.
(2) ?Internet services? means providing access to, and presence
on, the internet and other services. Data may be transmitted using several
technologies, including dial-up, DSL, cable modem, wireless, or dedicated
high-speed interconnects.
(3) ?Member? means a member of an association without capital
stock and a holder of common stock in an association organized with capital
stock.
(4) ?Qualified person? means a person who is engaged in the use of
internet services, either in an individual capacity or as a business.
(5) ?Qualified activity? means using internet services.
?31G-2-2. Who may organize.
Notwithstanding any provision of this code to the contrary, twenty
or more qualified persons engaged in the use of internet services may form a cooperative
association, with or without capital stock, under this article.
?31G-2-3. Legislative findings and
purposes.
(a) It is the finding of the Legislature that:
(1) West Virginia?s cities, towns, and other concentrated
population areas, areas of the state, mostly rural, remain unserved or
underserved by broadband access; and
(2) The lack of affordable, accessible broadband service in the
underserved and unserved areas in this state necessitates consideration of
alternative means and methods of providing internet services.
(b) It is the purpose of this article that individuals and
businesses be able to form cooperative associations for the purpose of
obtaining internet services within their respective regions and communities.
?31G-2-4. Powers.
(a) A cooperative association shall have the following powers:
(1) To engage in any qualified activity in connection with any
internet service; or any activity in connection with the purchase, providing or
use by its members of internet services; or in the financing, directly, through
the association of any qualified activities. All transactions with nonmembers
shall be on terms fixed by the association and nonmembers shall not otherwise
participate in any benefits derived from such transactions;
(2) To borrow money without limitation as to amount of corporate
indebtedness or liability, and to make advance payments and advances to
members; to execute, issue, draw, make, accept, endorse and guarantee, without
limitation, promissory notes, bills of exchange, drafts, warrants,
certificates, mortgages, and any other form of obligation or negotiable or
transferable bills of any kind; to become the surety, guarantor, maker, and/or
endorser for accommodation or otherwise of bills, notes, securities and other
evidences of debt of any association or person, anything in any other statutes
or law of this state to the contrary notwithstanding;
(3) To act as the agent or representative of any member or members
in any of the above-mentioned activities;
(4) To purchase or otherwise acquire, and to hold, own and
exercise all rights of ownership in, and to sell, transfer or pledge, or
guarantee the payment of dividends or interest on, or the retirement or
redemption of, shares of the capital stock or bonds of any corporation or association
engaged in any related activity or in the providing and marketing of any of the
products handled by the association;
(5) To establish reserves and to invest the funds thereof in bonds
or in such other property as may be provided in the bylaws;
(6) To buy, hold and exercise all privileges of ownership over
real or personal property as may be necessary or convenient for the conduct and
operation of any of the business of the association, or incidental thereto;
(7) To establish, secure, own and develop patents, trademarks and
copyrights; and
(8) To do each and every thing necessary, suitable, or proper for
the accomplishment of any one of the purposes or the attainment of any one or
more of the subjects herein enumerated, or conducive to or not contrary to the
interest or benefit of the association; and to contract accordingly; and, in
addition, to exercise and possess all powers, rights and privileges necessary
or incidental to the purposes for which the association is organized or to the
activities in which it is engaged, and any other rights, powers, and privileges
granted by the laws of this state to ordinary corporations, except such as are
inconsistent with the purposes of this article.
?31G-2-5. Members.
(a) Under the terms and conditions prescribed in the bylaws
adopted by it, a cooperative association may admit as members, or issue common
stock to, only qualified persons.
(b) If a member of a nonstock association be other than a natural
person, the member may be represented by an individual, associate, officer or
manager or member thereof, duly authorized in writing.
(c) One association organized hereunder may become a member or
stockholder of any other association or associations organized under this
article or similar laws of any state.
?31G-2-6. Articles of
incorporation.
Each association formed under this article shall prepare and file
articles of incorporation, setting forth:
(1) The name of the association, which shall include the words ?cooperative?,
?co-operative?, or ?co-op?, and words or abbreviations designating a
corporation;
(2) The purposes for which it is formed;
(3) The place where its principal business will be transacted;
(4) The period, if any prescribed, for the duration of the
corporation;
(5) The number of incorporators which is not less than twenty, the
number of directors which is not less than twenty and any number in excess of
those minimums, or it may be set forth that the number of directors will be
fixed by the bylaws;
(6) If organized without capital stock, whether the property
rights and interest of each member are equal or unequal; and if unequal, the
general rules applicable to the classes of members whose property rights and
interest are determined and fixed; and provision for the admission of new
members who may be entitled to share in the property of the association with
the old members, in accordance with the general rules. This provision of the
articles of incorporation may not be altered, amended or repealed except by the
written consent or vote of three fourths of the members;
(7) If organized with capital stock and authorized to issue only
one class of stock, the total number of shares of stock which the association
has authority to issue, including: (A) The par value of each of the shares; or
(B) a statement that all the shares are to be without par value;
(8) If the association is authorized to issue more than one class
of stock, the total number of shares of all classes of stock which the
association may issue, including: (A) The number of shares of each class that
have a par value and the par value of each share by class; (B) the number of
shares that are to be without par value; and (C) a statement of the powers,
preferences, rights, qualifications, limitations or restrictions that are
permitted by section thirteen of this article in respect to a class of stock
fixed by the articles of incorporation or by resolution of the board of
directors;
(9) The articles shall be signed and filed in accordance with the
provisions of the business or nonprofit corporation laws of this state; and
(10) The articles may also contain any provisions managing,
defining, limiting or regulating the powers and affairs of the association, the
directors, the stockholders or members of the association.
?31G-2-7. Amendments to articles of
incorporation.
The articles of incorporation may be altered or amended at any
regular meeting or any special meeting called for that purpose. An amendment
must first be approved by two thirds of the directors and then adopted by a
vote representing a majority of all the members of the association. Amendments
to the articles of incorporation, when so adopted, shall be filed in accordance
with the provisions of the general corporation laws of this state.
?31G-2-8. Bylaws.
Each association incorporated under this article, must, within
thirty days after its incorporation, adopt for its government and management a
code of bylaws, not inconsistent with the powers granted by this article. A
majority vote of the members or stockholders, or their written assent, is necessary
to adopt such bylaws. Each association, under its bylaws, may provide for any
or all of the following matters:
(1) The time, place and manner of calling and conducting its
meetings;
(2) The number of stockholders or members constituting a quorum;
(3) The right of members or stockholders to vote by proxy or by
mail or both; and the conditions, manner, form, and effect of such votes;
(4) The number of directors constituting a quorum; and, if
authority therefor is given in the articles of incorporation, the total number
of directors;
(5) The qualifications, compensation, duties and term of office of
directors and officers; time of their election and the mode and manner of
giving notice thereof;
(6) Penalties for violation of the bylaws;
(7) The amount of entrance, organization and membership fees, if
any; the manner and method of collecting the same; and the purposes for which
they may be used;
(8) The amount which each member or stockholder shall be required
to pay annually or from time to time, if at all, to carry on the business of
the association; the charge, if any, to be paid by each member or stockholder
for services rendered by the association to him or her and the time of payment
and the manner of collection; and the marketing contract between the
association and its members or stockholders which every member or stockholder
may be required to sign; and
(9) The number and qualifications of members or stockholders of
the association and the conditions precedent to membership or ownership of
common stock; the method, time and manner of permitting members to withdraw or
the holders of common stock to transfer their stock; the manner of assignment
and transfer of the interest of members and of the shares of common stock; the
conditions upon which and time when membership of any member shall cease; the
automatic suspension of the rights of a member when he or she ceases to be
eligible to membership in the association; the mode, manner and effect of the
expulsion of a member; the manner of determining the value of a member?s
interest, and provision for its purchase by the association, at its option,
upon the death or withdrawal of a member or stockholder, or upon the expulsion
of a member or forfeiture of his or her membership, or, at the option of the
association, the purchase at a price fixed by conclusive appraisal by the board
of directors, or at the election of the board, such property interests may be
sold at public auction to the association itself, or to any person eligible to
membership in such association and the proceeds of such sale paid over to the
personal representative of such deceased member, or to the member withdrawing
or expelled, as the case may be.
?31G-2-9. General and special
meetings.
In its bylaws, each association shall provide for one or more
regular meetings annually. The board of directors shall have the right to call
a special meeting at any time; and ten percent of the members or stockholders
may file a petition stating the specific business to be brought before the
association and demand a special meeting at any time. Such meeting must
thereupon be called by the directors. Notice of all meetings, together with a
statement of the purposes thereof, shall be mailed to each member at least ten
days prior to the meeting: Provided, That the bylaws may require instead
that such notice may be given as provided by this section, namely, as a Class I
legal advertisement in compliance with the provisions of article three, chapter
fifty- nine of this code, and the publication area for such publication shall
be the county in which the principal place of business of the association is
located.
?31G-2-10. Directors.
(a) The affairs of the association shall be managed by a board of
not less than three directors, elected by the members or stockholders.
(b) The bylaws may provide that the territory in which the
association has members shall be divided into districts and that the directors
be elected either directly or by district delegates elected by the members in
that district. The bylaws shall specify the number of directors to be elected
by each district, the manner of reapportioning the directors and the method of
redistricting the territory covered by the association. The bylaws may provide
that primary elections shall be held in each district to elect the directors
apportioned to the districts and that the results of all the primary elections
may be ratified during the next regular meeting of the association or may be
considered final.
(c) The bylaws may provide that one or more directors may be
appointed by a public official, commission or by the other directors. These
public directors shall represent the interest of the general public in the
associations. The public directors need not be members or stockholders of the
association, but shall have the same powers and rights as other directors. The
directors shall not number more than one fifth of the entire number of
directors.
(d) An association may provide a fair remuneration for the time
actually spent by its officers and directors in its service and for the service
of the members of its executive committee. No director, during the term of his
or her office, shall be a party to a contract for profit with the association
differing from the contractual terms accorded regular members or holders of
common stock of the association.
(e) The bylaws may provide that no director, except the president
and secretary, shall occupy a position in the association on regular salary or
substantially full-time pay.
(f) The bylaws may provide for an executive committee and may
allot to the committee all the functions and powers of the board of directors,
subject to the general direction and control of the board.
(g) When a vacancy on the board of directors occurs other than by
expiration of term, the remaining members of the board, by a majority vote,
shall fill the vacancy, unless the bylaws provide for an election of directors
by district. In that case the board of directors shall immediately call a
special meeting of the members or stockholders in that district to fill the
vacancy.
?31G-2-11. Officers.
The directors shall elect from their number a president and one or
more vice presidents. They shall also elect a secretary and a treasurer, who
need not be directors or members of the association; and they may combine the
two latter offices and designate the combined office as secretary-treasurer; or
unite both functions and titles in one person. The treasurer may be a bank or
any depository, and, as such, shall not be considered an officer, but as a
function of the board of directors. In such case, the secretary shall perform
the usual accounting duties of the treasurer, except that the funds shall be
deposited only as and where authorized by the board of directors.
?31G-2-12. Officers, employees and
agents to be bonded.
Every officer, employee and agent handling funds or negotiable
instruments or property of or for any association created hereunder shall be
required to execute and deliver adequate bonds for the faithful performance of
his or her duties and obligations.
?31G-2-13. Stock; membership
certificate; voting; liability; limitations on transfer and ownership.
(a) When a member of an association established without capital
stock has paid his or her membership fee in full, he or she shall receive a
certificate of membership. An association shall have power to issue one or more
classes of stock, or one or more series of stock within any class thereof, any
or all of which classes may be of stock with par value or stock without par
value, with such voting powers, full or limited, or without voting powers and
in such series, and with such designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated and expressed in the
articles of incorporation, or in any amendment thereto, or in the resolution or
resolutions providing for the issue of such stock adopted by the board of
directors pursuant to authority expressly vested in it by the provisions of the
articles of incorporation or of any amendment thereto.
(b) No association shall issue stock to a member until it has been
fully paid for. The promissory notes of the members may be accepted by the
association as full or partial payment. The association shall hold the stock as
security for the payment of the note; but such retention as security shall not
affect the member?s right to vote.
(c) No member shall be liable for the debts of the association to
an amount exceeding the sum remaining unpaid on his or her membership fee or
his or her subscription to the capital stock, including any unpaid balance on
any promissory notes given in payment thereof.
(d) An association in its bylaws may limit the amount of common
stock which one member may own. No member or stockholder shall be entitled to
more than one vote, regardless of the number of shares of common stock owned by
him or her.
(e) Any association organized with stock under this article may
issue preferred stock, with or without the right to vote. Such stock may be sold
to any person, member or nonmember, and may be redeemable or retireable by the
association on such terms and conditions as may be provided for by the articles
of incorporation and printed on the face of the certificate. The bylaws shall
prohibit the transfer of the common stock of the association to persons who are
not qualified persons, or organizations that are not engaged in qualified
activities handled by the association, or to persons or organizations that are
not members of credit associations financing such products; and such
restrictions shall be printed upon every certificate of stock subject thereto.
(f) Other kinds and classes of stock may be issued in compliance
with the provisions of the articles of incorporation, the terms of the bylaws,
or special resolutions of the board of directors.
(g) The association may, at any time, as specified in the bylaws,
except when the debts of the association exceed fifty percent of the assets
thereof, buy in or purchase its common stock at the book value thereof, as
conclusively determined by the board of directors, and pay for it in cash
within one year thereafter.
?31G-2-14. Removal of officer or
director.
(a) Any member may bring charges against an officer or director by
filing them in writing with the secretary of the association, together with a
petition signed by five percent of the members, requesting the removal of the
officer or director in question. The removal shall be voted upon at the next
regular or special meeting of the association and, by a vote of a majority of
the members, the association may remove the officer or director and fill the
vacancy. The director or officer against whom such charges have been brought
shall be informed in writing of the charges previous to the meeting and shall
have an opportunity at the meeting to be heard in person or by counsel and to
present witnesses; and the person or persons bringing the charges against him
or her shall have the same opportunity.
(b) In case the bylaws provide for election of directors by districts
with primary elections in each district, then the petition for removal of a
director must be signed by twenty percent of the members residing in the
district from which he or she was elected. The board of directors must call a
special meeting of the members residing in that district to consider the
removal of the director; and by a vote of the majority of the members of that
district the director in question shall be removed from office.
?31G-2-15. Referendum.
Upon demand of one third of the entire board of directors, made
immediately and so recorded, at the same meeting at which the original motion
was passed, any matter of policy that has been approved or passed by the board
must be referred to the entire membership or the stockholders for decision at
the next special or regular meeting; and a special meeting may be called for
the purpose.
?31G-2-16. Marketing contract.
The association and its members may take and execute marketing
contracts, requiring the members, for any period of time not over five years,
to use, receive or provide all or any specified part of an internet service
exclusively to or through the association, or any facilities to be created by
the association. If they contract a sale to the association, it shall be
conclusively held that title to the products, goods and services passes
absolutely and unreservedly, except for recorded liens, to the association upon
delivery, or at any other specified time if expressly and definitely agreed in
such contract. The contract may provide, among other things, that the
association may sell or resell the products, goods and services delivered by
its members, with or without taking title thereto, and pay over to its members
the resale price, after deducting all necessary selling, overhead and other costs
and expenses, including interest or dividends on stock, not exceeding eight
percent per annum, and reserves for retiring the stock, if any; and any other
proper reserves; or any other deductions.
?31G-2-17. Remedies for breach of
contract.
The bylaws or the marketing contract may fix, as liquidated
damages, specific sums to be paid by the member or stockholder to the
association upon the breach by him or her of any provision of the marketing
contract regarding the sale or delivery or withholding of internet services,
and may further provide that the member will pay all costs, premiums for bonds,
expenses and fees, in case the association shall prevail in any action brought
by it upon the contract; and any such provisions shall be valid and enforceable
in the courts of this state; and such clauses providing for liquidated damages
shall be enforceable as such and shall not be regarded as penalties.
In the event of any such breach or threatened breach of such
marketing contract by a member, the association shall be entitled to an
injunction to prevent the further breach of the contract and to a decree of
specific performance thereof. Pending the adjudication of such an action and
upon filing a verified complaint showing the breach or threatened breach, and upon
filing a sufficient bond, the association may be entitled to a temporary
restraining order and preliminary injunction against the member.
In any action upon such marketing agreement, it shall be presumed
as between the parties that the landowner, landlord or lessor claiming therein
so to be is able to control the delivery of internet services produced on his
or her land by tenants or others, whose tenancy or possession or work on such
land or the terms of whose tenancy or possession or labor thereon were created
or changed after execution by the landowner, landlord or lessor of such
marketing agreement; and in such actions the foregoing remedies for nondelivery
or breach shall lie and be enforceable against such landowner, landlord or
lessor.
?31G-2-18. Purchasing property of
other associations, persons, firms or corporations.
Whenever an association, organized under this article with
preferred capital stock, shall purchase the stock of any property, or any
interest in any property, or any person, firm or corporation or association, it
may discharge the obligations so incurred, wholly or in part, by exchanging for
the acquired interest shares of its preferred capital stock to an amount which
at par value would equal the fair market value of the stock or interest so
purchased, as determined by the board of directors. In that case the transfer
to the association of the stock or interest purchased shall be equivalent to
payment in cash for the shares of stock issued.
?31G-2-19. Annual reports.
Each association formed under this article shall prepare an annual
report on forms provided by and filed with the Secretary of State pursuant to
the requirements of section two-a, article one, chapter fifty-nine of this
code.
?31G-2-20. Conflicting laws not to
apply.
Any provisions of law which are in conflict with this article
shall be construed as not applying to the association herein provided for.
?31G-2-21. Interest in other
corporations or associations.
An association may organize, form, operate, own, control, have an
interest in, own stock of, or be a member of any other corporation or
corporations, with or without capital stock, and engaged in qualified
activities regarding internet services.
?31G-2-22. Contracts and agreements
with other associations.
Any association may, upon resolution adopted by its board of
directors, enter into all necessary and proper contracts and agreements and
make all necessary and proper stipulations, agreements and contracts and
arrangements with any other cooperative corporation, association or
associations, formed in this or in any other state, for the cooperative and
more economical carrying on of its business or any part or parts thereof. Any
two or more associations may, by agreement between them, unite in employing and
using, or may separately employ and use, the same personnel, methods, means and
agencies for carrying on and conducting their respective business.
?31G-2-23. Rights and remedies
apply to similar associations of other states.
Any corporation or association heretofore or hereafter organized
under generally similar laws of another state shall be allowed to carry on any
proper activities, operations and functions in this state upon compliance with
the general regulations applicable to foreign corporations desiring to do business
in this state, and all contracts made by or with such associations, which could
be made by any association incorporated hereunder, shall be legal and valid and
enforceable in this state with all of the remedies set forth in this article.
?31G-2-24. Associations heretofore
organized may adopt provisions of article.
Any corporation or association organized in this state under
previously existing statutes may, by a majority vote of its stockholders or
members, be brought under the provisions of this article by limiting its
membership and adopting the other restrictions as provided herein. It shall
make out in duplicate a statement signed and sworn to by its directors to the
effect that the corporation or association has, by a majority vote of the stockholders
or members, decided to accept the benefits and be bound by the provisions of
this article and has authorized all changes accordingly. Articles of
incorporation shall be filed as required in section six of this article, except
that they shall be signed by the members of the then board of directors. The
filing fee shall be the same as for filing an amendment to articles of
incorporation.
Where any association may be incorporated under this article, all
contracts made prior to the date of incorporation, by or on behalf of such
association by the promoters thereof in anticipation of its becoming
incorporated under the laws of this state, whether or not such contracts be
made by or in the name of some corporation organized elsewhere, and when they
would have been valid if entered into subsequent to such date, shall be held
valid as if made after such date.
?31G-2-25. Liability as to delivery
of products in violation of marketing agreements.
Any person who solicits, persuades or permits any member of any
association organized hereunder to breach his or her marketing contract with
the association or one association with another, by accepting or receiving such
member?s products for sale or for auction or for display for sale, contrary to
the terms of any marketing agreement of which such person has knowledge or
notice, shall be liable to the association aggrieved in a civil suit for
damages therefor. Courts of equity shall have jurisdiction to enjoin further
breaches of such contract.
?31G-2-26. Associations to be
deemed not in restraint of trade.
No association organized under this article and complying with the
terms thereof shall be deemed to be a conspiracy or a combination in restraint
of trade or an illegal monopoly or an attempt to lessen competition or to fix
prices arbitrarily; nor shall the marketing contract and agreements between the
association and its members or any agreements authorized in this article be
considered illegal as such or in unlawful restraint of trade or as part of a
conspiracy or combination to accomplish an improper or illegal purpose.
?31G-2-27. Application of business
corporation laws; nonprofit corporation laws.
The provisions of the business corporation laws in chapter
thirty-one-d or the nonprofit corporation laws in chapter thirty-one-e of this
code and all powers and rights thereunder shall apply to the associations
organized under this article and may be used by them, except when the
provisions are in conflict with or inconsistent with the express provisions of
this article.
ARTICLE 3. CONDUIT INSTALLATION;
microtrenching.
?31G-3-1. Definitions.
?Microtrenching? means a technique of deploying cables, including
specifically for broadband networks, using a cutting wheel to cut a trench with
smaller dimensions than can be achieved with conventional trench digging
equipment; with the trench dimensions being no greater than three inches in
width, and a depth between one and two feet.
?31G-3-2. Microtrenching permitted; notification.
(a) A person may perform microtrenching, where such is feasible,
to the extent allowed by a permit issued by the appropriate municipality,
county or state agency. All microtrenching work performed must be in accordance
with the National Electrical Safety Code and other generally accepted safety
codes.
(b) A person must install conduit in a way that will readily
permit another owner to add length to the microtrenching by connecting its own
conduit to the first owner?s conduit. Where an owner connects its own conduit
to another owner?s previously installed conduit, the owner must install conduit
that has the same number of pathways or pipes as the previous owner?s conduit.
(c) A person must install a vacant conduit of the same size as its
own conduit when performing microtrenching operations. Other persons desiring
use of conduit in the same area may make use of this vacant conduit upon
application to the Broadband Enhancement Council.
(d) When applying for a permit a person must notify the
appropriate permitting entity of the intended dates of the start and completion
of microtrenching construction. Notification must be made on a form and in a
format prescribed by the appropriate permitting entity. No fee shall be charged
for such application, as the installation of additional vacant conduit under
the provisions of this section shall function in lieu of a fee. The person
shall submit the following documents to the appropriate permitting entity:
(1) Proof of insurance; or
(2) An indemnification agreement.
(e) Promptly after completion of microtrenching construction, but
no longer than forty calendar days after issuance of the permit for
microtrenching, the entity must file a document with the appropriate permitting
entity containing the following information:
(1) An ?as-built? drawing of the conduit installed. The ?as-built?
drawing will be treated as proprietary and confidential, to the extent
permitted by law.
(2) A map showing the street location of the conduit including the
side of the street the conduit is on, the beginning and ending points of the
conduit, the number of ducts in the conduit, and the number of ducts of excess
capacity in the conduit. The map must accurately reflect the addresses of
buildings that are passed by the conduit.
article 4. make-ready pole
access.
?31G-4-1. Definitions.
As used in this article, the following terms are defined as
follows:
(1) ?Attacher? means any person, corporation, or other entity, or
the agents or contractors of such seeking to permanently or temporarily fasten
or affix any type of equipment, antenna, line or facility of any kind to a
utility pole in the right of way or its adjacent ground space.
(2) ?Attachment Application? means the application made by an
Attacher to a Pole Owner for attachment of equipment, antenna, line or facility
of any kind to a utility pole. It shall include
(A) Proof of insurance; or
(B) An indemnification agreement prepared by the Pole Owner.
(3) ?Make Ready Costs? means the costs incurred by an Attacher
associated with the transfer of the facilities, antenna, lines or equipment of
a Pre-Existing Third Party User, undertaken by an Attacher to enable attachment
to the utility pole or similar structure. Make-Ready Costs that are to be paid
by an Attacher include, without limitation, all costs and expenses to relocate
or alter the attachments or facilities of any Pre-Existing Third Party User as
may be necessary to accommodate an Attacher?s attachment.
(4) ?Pole Owner? means a person, corporation or entity having
ownership of a pole or similar structure in the right of way to which
utilities, including without limitation, electric and communications
facilities, are located or may be located whether such ownership is in fee
simple or by franchise.
(5) ?Pre-Existing Third Party User? means the owner of any
currently operating facilities, antenna, lines or equipment on a pole or its
adjacent ground space in the right of way.
?31G-4-2. Attachment to third party facilities.
(a) Upon approval of an Attachment Application, an Attacher may
relocate or alter the attachments or facilities of any Pre-Existing Third Party
User as may be necessary to accommodate an Attacher?s attachment using Pole
Owner approved contractors; provided, however, that an Attacher will not
effectuate a relocation or alteration of a Pre-Existing Third Party User?s
facilities that causes or would reasonably be expected to cause a customer
outage without first providing forty-five days prior written notice to the
Pre-Existing Third Party User, in order to permit the Pre-Existing Third Party
User to relocate its facilities on its own.
(b) In the event the Pre-Existing Third Party Users of such other
facilities fail to transfer or rearrange their facilities within forty-five
days from receipt of notice of relocation or alteration of a Pre-Existing Third
Party User?s facilities that causes or would reasonably be expected to cause a
customer outage, an Attacher may undertake such work.
(c) Within thirty days of the completion of any relocation or
alteration, an Attacher shall send notice of the move and as-built reports to
the Pre-Existing Third Party User and the owner of all poles or other
structures on which such relocations or alterations were made. The as-built
reports shall include a unique field label identifier, and an address or
coordinates.
(d) Upon receipt of the as-built reports, the Pre-Existing Third
Party User and pole or structure owner(s) may conduct an inspection within
fourteen days at an Attacher?s expense. An Attacher shall pay the actual,
reasonable, and documented expenses incurred by the Pre-Existing Third Party
User and pole or structure owner for the inspection. If any such relocation or
alteration results in the facilities of the Pre-Existing Third Party User on
the pole or other structure failing to conform with the applicable safety Pole
Owner?s standards, the Pre-Existing Third Party User shall, within seven days
of the inspection, notify an Attacher of such failure to conform.
(e) In a notice, the Pre-Existing Third Party User may elect to
either:
(1) Perform the correction itself and bill the Attacher for the
actual, reasonable and documented costs of the correction, or
(2) Instruct the Attacher to correct such conditions at Attacher?s
expense. Any post-inspection corrections performed by the Attacher must be
completed within thirty days of such notification.
(f) As a condition of exercising the ability to relocate,
rearrange, or alter a Pre-Existing Third Party User?s facilities pursuant to
this section, an Attacher shall indemnify, defend and hold harmless the owner
or owners of all poles or other structures on which such relocation,
rearrangement or alteration takes place, the affiliates of such owner or
owners, and the officers, directors and employees of such owner or owners and
their affiliates, each being deemed an Indemnitee, from and against all third
party damage, loss, claim, demand, suit, liability, penalty or forfeiture of
every kind and nature, including, but not limited to, costs and expenses of
defending against the same, payment of any settlement or judgment therefor and
reasonable attorney?s fees, that are actually and reasonably incurred by an
Indemnitee, by reason of any claim by an affected Pre-Existing Third Party User
or any person or entity claiming through such Pre-Existing Third Party User
arising from such relocation, rearrangement or alteration.
(g) All work performed must be in accordance with the National
Electrical Safety Code and other generally accepted safety codes.
?31G-4-3. Exceptions.
(a) Notwithstanding any provision of this code to the contrary,
the provisions of this article shall not apply to:
(1) Facilities located above the ?Communication Worker Safety Zone?
as such term is defined in the National Electrical Safety Code; or
(2) Any electric supply facilities wherever located.
(b) This article does not authorize any activity requiring an
electric supply outage.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 3093 ? ?A Bill to repeal ?31-15C-1,
?31-15C-2, ?31-15C-3, ?31-15C-4, ?31-15C-5, ?31-15C-6, ?31-15C-7, ?31-15C-8,
?31-15C-9, ?31-15C-12 and ?31-15C-13 of the Code of West Virginia, 1931, as
amended; to amend and reenact ?12-6C-11 of said code; to amend and reenact
?31-15-8 of said code; and to amend said code by adding thereto a new chapter,
designated ?31G-1-1, ?31G-1-2, ?31G-1-3, ?31G-1-4, ?31G-1-5, ?31G-1-6,
?31G-1-7, ?31G-1-8, ?31G-1-9, ?31G-1-10, ?31G-1-11, ?31G-1-12, ?31G-1-13;
?31G-1-14, ?31G-2-1, ?31G-2-2, ?31G-2-3, ?31G-2-4, ?31G-2-5, ?31G-2-6,
?31G-2-7, ?31G-2-8, ?31G-2-9, ?31G-2-10, ?31G-2-11, ?31G-2-12, ?31G-2-13;
?31G-2-14, ?31G-2-15, ?31G-2-16, ?31G-2-17, ?31G-2-18, ?31G-2-19, ?31G-2-20,
?31G-2-21, ?31G-2-22, ?31G-2-23, ?31G-2-24, ?31G-2-25, ?31G-2-26, ?31G-2-27;
?31G-3-1, ?31G-3-2, ?31G-4-1, ?31G-4-2 and ?31G-4-3, all relating to broadband
services generally; requiring the Board of Treasury Investments make funds
available to the West Virginia Economic Development Authority for the purpose
of providing loan insurance for commercial loans used for the expansion of
broadband service to unserved or underserved areas; establishing limits and
conditions on the insuring of loans; establishing interest rates; establishing
amortization periods; providing for security interests; providing for
responsibilities of the West Virginia Economic Development Authority, the West
Virginia Board of Treasury Investments and the Broadband Enhancement Council;
providing that the members of the West Virginia Board of Treasury Investments
do not have a fiduciary responsibility with regard to the loans; providing for
notice for loan insurance; providing for hearings and appeal; establishing
Broadband Enhancement and Expansion Polices; re-establishing and continuing the
Broadband Enhancement Council; defining terms; revising council powers and
duties; directing council to publish an annual assessment and map of broadband
in the state; authorizing council to create an interactive map of broadband
services; revising terms for retention of expert consultants; authorizing
collection of data by council; authorizing creation of guidelines and
recommendations to the Legislature for pilot project for municipalities and
counties to form non-profit cooperative associations for internet services;
authorizing creation of guidelines and recommendations to the Legislature for
voluntary pipeline donation program to facilitate broadband services;
authorizing creation of guidelines and recommendations to the Legislature for
easement program to facilitate broadband services; authorizing council to seek,
utilize and dispense non-state funding and grants; providing for legislative
rulemaking authority; authorizing formation of cooperative associations for
internet services; providing for who may organize a cooperative association;
defining terms; setting forth legislative findings and purpose; establishing
the powers of such associations; setting forth all conditions, rights and
responsibilities of such cooperative associations;? declaring that cooperative association not
deemed a restraint in trade; providing for the application of corporation laws;
providing for microtrenching; defining terms; providing for make-ready pole
access; defining terms; setting forth procedure for attaching items to third-party
facilities and poles; and providing for exceptions to make-ready pole access.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 538),
and there were--yeas 96, nays 3, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Folk, Lewis and McGeehan.
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 3093) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence by the Senate in the amendment of the House of Delegates to the
amendment of the Senate, and the passage, with further amendment, of
??????????? Com.
Sub. for S. B. 240, Creating crime of nonconsensual distribution of sexual
images.
??????????? On
motion of Delegate Cowles, the House concurred in the following amendment of
the bill by the Senate:
On
page one, section twenty-eight-a, subsection (b), after the word ?coerce?, by
striking out the comma and the words ?or profit from?.
??????????? The bill, as amended by the House and further amended by
the Senate, was then put upon its passage.
On
passage of the bill, the yeas and nays were taken (Roll No. 539), and there were--yeas 98, nays none, absent and not
voting 2, with the absent and not voting being as follows:
??????????? Absent and Not Voting: Bates and Kessinger.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 240) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Miscellaneous Business
??????????? The Speaker recognized the Clerk of
the House, who presented service pins to the following Members:
|
5 Year Pins: ??????????? Ambler ??????????? Arvon ??????????? Butler ??????????? Cooper ??????????? Espinosa ??????????? Folk ??????????? Hamrick ??????????? Lane Lynch ??????????? McGeehan ??????????? Sponaugle ??????????? Westfall?????????? |
15 Year Pins: ??????????? Hamilton ??????????? Hartman Love ??????????? Sobonya ??????????? |
25 Year Pins: ??????????? Anderson ??????????? Pethtel |
Messages
from the Senate
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to recede from its amendment and requested the
House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
??????????? Com. Sub. for H. B. 2329,
Prohibiting the production, manufacture or possession of fentanyl.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Weld, Maynard and Jeffries.
??????????? On motion of Delegate Cowles, the
House of Delegates agreed to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses.
??????????? Whereupon,
??????????? The Speaker appointed as conferees
on the part of the House of Delegates the following:
??????????? Delegates Sobonya, Hollen and R.
Miller.
??????????? Ordered, That the Clerk of the House communicate to the
Senate the action of the House of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to recede from its amendment and requested the
House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
??????????? Com. Sub. for H. B. 2579,
Increasing the penalties for transporting controlled substances.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Weld, Maynard and Jeffries.
??????????? On motion of Delegate Cowles, the House
of Delegates agreed to the appointment of a Committee of Conference of three
from each house on the disagreeing votes of the two houses.
??????????? Whereupon,
??????????? The Speaker appointed as conferees
on the part of the House of Delegates the following:
??????????? Delegates Sobonya, Hollen and R.
Miller.
??????????? Ordered, That the Clerk of the House communicate to the
Senate the action of the House of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to recede from its amendment and requested the
House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
??????????? Com. Sub. for H. B. 2585,
Creating felony crime of conducting financial transactions involving proceeds
of criminal activity.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Weld, Maynard and Jeffries.
??????????? On motion of Delegate Cowles, the
House of Delegates agreed to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses.
??????????? Whereupon,
??????????? The Speaker appointed as conferees
on the part of the House of Delegates the following:
??????????? Delegates Sobonya, Hollen and R.
Miller.
??????????? Ordered, That the Clerk of the House communicate to the
Senate the action of the House of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate announced
that the Senate had agreed to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses, as to
??????????? S.
B. 172, Eliminating salary
for Water Development Authority board members.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Blair, Smith and Woelfel.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate announced
that the Senate 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
??????????? S.
B. 554, Relating to false
swearing in legislative proceeding.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Weld, Clements and Beach.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate announced
that the Senate 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
??????????? Com.
Sub. for S. B. 224, Repealing
requirement for employer?s bond for wages and benefits.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Swope, Karnes and Ojeda.
??????????? A message from, the Senate, by
??????????? The Clerk of the Senate requests the
return of
??????????? Com. Sub. for S. B. 238,
Increasing tax credits allowed for rehabilitation of certified historic
structures.
At 2:42 p.m.,
on motion of Delegate Cowles, the House of Delegates recessed until 4:00 p.m.
* * * * * * * *
Afternoon Session
* * * * * * * *
-continued-
??????????? The
House of Delegates was called to order by the Honorable Tim Armstead, Speaker.
Messages from the Senate
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2002,
Relating to parental notification of abortions performed on unemancipated
minors.
??????????? Delegate Cowles moved
that the House concur in the following amendment of the bill by the Senate:
??????????? On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
?ARTICLE 2F. PARENTAL NOTIFICATION OF
ABORTIONS PERFORMED ON UNEMANCIPATED MINORS.
?16-2F-1. Legislative findings and intent.
(a) The Legislature finds that immature minors often lack the
ability to make fully informed choices that take into account both immediate
and long-range consequences of their actions; that the medical, emotional and
psychological consequences of abortion are serious and of indeterminate
duration, particularly when the patient is immature; that in its current
abortion policy as expressed in Bellotti v. Baird, 443 U. S. 622 (1979), and
H. L. v. Matheson, 450 U. S. 398 (1981), and Hodgson v. Minnesota, 497 U.S.
417, (1990), the United States Supreme Court clearly relies on physician?s
commitment to consider all factors, physical and otherwise, before performing
abortions on minors held that notification of a parent with a judicial
waiver procedure is Constitutional; that parents ordinarily possess
information essential to a physician?s exercise of his or her best
medical judgment concerning their child; and that parents who are aware that
their minor daughter has had an abortion may better ensure that the minor
receives adequate medical attention after her abortion.
(b) The Legislature further finds
that parental consultation regarding abortion is usually desirable and in the
best interests of the minor.
(c) The Legislature further finds in
accordance with the U. S. Supreme Court?s decision in Bellotti v. Baird, 443 U.
S. 622 (1979), and H. L. v. Matheson, 450 U. S. 398 (1981), that there
exists important and compelling state interests:
(i) (1) in protecting minors
against their own immaturity,
(ii) (2) in fostering the
family structure and preserving it as a viable social unit, and
(iii) (3) in protecting the
rights of parents to rear their own children in their own household.
(d) It is, therefore, the intent of
the Legislature to further these important and compelling state
interests by enacting this parental notice provision.
?16-2F-2. Definitions.
For purposes of this article, unless the context in which used
clearly requires otherwise:
(1) ?Minor? means any person under the age of eighteen years who
has not graduated from high school.
(2) ?Unemancipated minor? means any minor who is neither married
nor who has been emancipated as pursuant to applicable federal law or as
provided by section twenty-seven, article seven, chapter forty-nine of this
code.
(3) ?Actual notice? means the giving of notice directly, in person
or by telephone.
(4) ?Constructive notice? means the giving of notice by certified
mail to the last known address of the parents or legal guardian, return receipt
requested.
(5) ?Abortion? means the use of any instrument, medicine, drug or
any other substance or device with intent to terminate the pregnancy of a
female known to be pregnant and with intent to cause the expulsion of a fetus
other than by live birth: Provided,
That nothing in this article shall be construed so as to prevent the
prescription, sale or transfer of intrauterine contraceptive devices or other
contraceptive devices or other generally medically accepted contraceptive
devices, instruments, medicines or drugs for a female who is not known to be
pregnant and for whom such contraceptive devices, instruments, medicines or
drugs were prescribed by a physician solely for contraceptive purposes and not
for the purpose of inducing or causing the termination of a known pregnancy.
As used in this article:
(1) ?Abortion? means the use of any instrument, medicine, drug or
any other substance or device with intent to terminate the pregnancy of a
female known to be pregnant and with intent to cause the expulsion of a fetus
other than by live birth. This article does not prevent the prescription, sale
or transfer of intrauterine contraceptive devices, other contraceptive devices
or other generally medically accepted contraceptive devices, instruments,
medicines or drugs for a female who is not known to be pregnant and for whom
the contraceptive devices, instruments, medicines or drugs were prescribed by a
physician solely for contraceptive purposes and not for the purpose of inducing
or causing the termination of a known pregnancy.
(2) ?Medical emergency? means the same as that term is defined in
section two, article two-m of this chapter.
(3) ?Secretary? means the Secretary of the West Virginia
Department of Health and Human Resources.
(4) ?Unemancipated minor? means any person less than eighteen
years of age who is not, or has not been, married, who is under the care,
custody and control of the person?s parent or parents, guardian or court of
competent jurisdiction pursuant to applicable federal law or as provided in
section twenty-seven, article seven, chapter forty-nine of this code.
?16-2F-3. Parental notification required for abortions
performed on unemancipated minors.
(a) No physician may perform an abortion upon an unemancipated
minor unless such physician has given or caused to be given at least
twenty-four hours actual notice to one of the parents or to the legal guardian
of the pregnant minor of his intention to perform the abortion, or, if the
parent or guardian cannot be found and notified after a reasonable effort to do
so, without first having given at least forty- eight hours constructive notice
computed from the time of mailing to the parent or to the legal guardian of the
minor: Provided, That prior to giving the notification required by this
section, the physician shall advise the unemancipated minor of the right of
petition to the circuit court for waiver of notification: Provided, however,
That any such notification may be waived by a duly acknowledged writing signed
by a parent or the guardian of the minor.
(b) Upon notification being given to any parent or to the legal
guardian of such pregnant minor, the physician shall refer such pregnant minor
to a counselor or caseworker of any church or school or of the department of
human services or of any other comparable agency for the purpose of arranging
or accompanying such pregnant minor in consultation with her parents. Such
counselor shall thereafter be authorized to monitor the circumstances and the
continued relationship of and between such minor and her parents.
(c) Parental notification required by subsection (a) of this
section may be waived by a physician, other than the physician who is to
perform the abortion, if such other physician finds that the minor is mature
enough to make the abortion decision independently or that notification would
not be in the minor?s best interest. Provided, That such The other
physician shall not be associated professionally or financially with the
physician proposing to perform the abortion.
(a) A
physician may not perform an abortion upon an unemancipated minor until notice
of the pending abortion as required by this section is complete.
(b) A
physician or his or her agent may personally give notice directly, in person,
by telephone or by letter to the parent, the guardian or conservator of the
unemancipated minor at their usual place of residence and shall be delivered
personally by the physician or his or her agent. Upon delivery of the notice,
forty-eight hours shall pass until the abortion may be performed.
(c) A
physician or his or her agent may provide notice by certified mail addressed to
the parent, the guardian or conservator of the unemancipated minor at their
usual place of residence, return receipt requested. The delivery shall be sent
restricted delivery assuring that the letter is delivered only to the
addressee. Time of delivery shall be deemed to occur at twelve o?clock noon on
the next day on which regular mail delivery takes place unless. Upon delivery
of the notice, forty-eight hours shall pass until the abortion may be
performed.
(d)
Notice may be waived if the person entitled to notice certifies in writing that
he or she has been notified.
?16-2F-4. Process to obtain waiver of notification.
(a) A minor An unemancipated minor who objects to such
the notice being given to her parent or legal guardian may petition for
a waiver of such the notice to the circuit court of the county in
which the minor unemancipated minor resides or in which the
abortion is to be performed, or to the judge of either of such courts. Such
minor may so petition and proceed in her own right or, at her option, by a next
friend.
(b) Such The petition need not be made in any
specific form and shall be sufficient if it fairly sets forth the facts and
circumstances of the matter, but shall contain the following information:
(i) The age of the petitioner unemancipated minor
and her educational level;
(ii) The county and state in which she resides; and
(iii) A brief statement of petitioner?s unemancipated
minor?s reason or reasons for the desired waiver of notification of the
parent or guardian of such minor petitioner unemancipated minor.
No such petition shall be dismissed nor shall any hearing thereon
be refused because of any defect in the form of the petition.
(c) Upon the effective date of this article or as soon
thereafter as may be, The Attorney General shall prepare suggested form
petitions and accompanying instructions and shall make the same available to
the several clerks of the circuit courts. Such The clerks
shall see that a sufficient number of such suggested make the
form petitions and instructions are available in the clerks office. for
the use of any person desiring to use the same for the purposes of this
section.
(d) All The proceedings held pursuant to this
article shall be confidential and the court shall conduct all such the
proceedings in camera. The court shall inform the minor petitioner unemancipated
minor of her right to be represented by counsel. and that If she
the unemancipated minor is without the requisite funds to retain the
services of an attorney, that the court will appoint an attorney to
represent her the unemancipated minor?s interest in the matter.
If the minor petitioner unemancipated minor desires the services
of an attorney, an attorney shall be appointed to represent such the
minor petitioner unemancipated minor, if she the
unemancipated minor advises the court under oath or affidavit that she
the unemancipated minor is financially unable to retain counsel. Any
An attorney appointed to represent such the minor petitioner
unemancipated minor shall be appointed and paid for his or her
services pursuant to the provisions of article twenty-one, chapter twenty-nine
of this code. Provided, That The pay to any such
attorney pursuant to such appointment shall not exceed the sum of $100.
(e) The court shall conduct a hearing upon the petition without
delay, but in no event shall the delay may not exceed the next
succeeding judicial day. and The court shall render its decision
immediately upon its submission and, in any event, an order reflecting the
findings of fact and conclusions of law reached by the court and its judgement
shall be endorsed by the judge thereof its written order not later
than twenty-four hours following such submission and shall be
forthwith entered of in the record by the clerk of the court.
All testimony, documents, and other evidence, presented to the court,
as well as the petition, and any orders entered thereon and all
records of whatsoever nature and kind relating to the matter shall be
sealed by the clerk and shall not be opened to any person except upon order of
the court and, then, only upon a showing of good cause. being
shown therefor. A separate order book for the purposes of this article
shall be maintained by such the clerk and shall likewise
be sealed and not open to inspection by any person save upon order of the court
for good cause shown.
(f) Notice as required by section three of this article shall be
ordered waived by the court if the court finds either:
(1) That the minor petitioner unemaciated minor is
mature and well informed sufficiently to make the decision to proceed with the
abortion independently and without the notification or involvement of her
parent or legal guardian; or
(2) That notification to the person or persons to whom such
the notification would otherwise be required would not be in the best
interest of the minor petitioner unemancipated minor.
(g) If or when the circuit court, or the judge thereof, shall
refuse to order the waiver of the notification required by section three of
this article, a copy of the petition and all orders entered in the matter and
all other documents and papers submitted to the circuit court, may be presented
to the Supreme Court of Appeals, or to any justice thereof if such court then
be in vacation, and such court or justice if deemed proper, may thereupon order
the waiver of notification otherwise required by section three of this article.
The Supreme Court of Appeals or justice thereof shall hear and decide the
matter without delay and shall enter such orders as such court or justice may
deem appropriate.
(h) If either the circuit court or the Supreme Court of Appeals,
or any judge or justice thereof if either of such courts be then in vacation,
shall order a waiver of the notification required by section three of this
article, any physician to whom a certified copy of said order shall be
presented may proceed to perform the abortion to the same extent as if such
physician were in compliance with the provisions of said section three and,
notwithstanding the fact that no notification is given to either the parent or
legal guardian of any such unemancipated minor, any such physician shall not be
subject to the penalty provisions which may be prescribed by this article for
such failure of notification.
(g) A confidential appeal shall be available to any unemancipated
minor to whom a court denies an order authorizing an abortion without
notification. An order authorizing an abortion without notification may not be
appealed. Access to the trial court and the Supreme Court of Appeals shall be
given to an unemancipated minor.
(i) (h) No Filing fees may
be are not required of any unemancipated minor who avails
herself of any of the procedures provided by this section.
?16-2F-5. Emergency exception from notification
requirements.
(a) The notification requirements of
section three of this article do not apply where the attending physician
certifies that there is an emergency a need for an abortion
to be performed if the continuation of the pregnancy constitutes an
immediate threat and grave risk to the life or health of the pregnant minor and
the attending physician so certifies in writing setting forth the nature of
such threat or risk and the consequences which may be attendant to the
continuation of the pregnancy due to a medical emergency. Such
writing A description of the medical emergency shall be maintained
with the other unemancipated minor?s medical records. relating
to such minor which are maintained. by the physician and the facility at which
such abortion is performed.
(b)
If the physician who is to perform the abortion concludes under subsection (a)
of this section that a medical emergency exists and that there is insufficient
time to provide the notice required by section three of this article, the
physician shall make a reasonable effort to inform, in person or by telephone,
the parent, managing conservator, or guardian of the unemancipated minor within
24 hours after the time a medical emergency abortion is performed on the minor
of:
(1)
The performance of the abortion; and
(2)
The basis for the physician?s determination that a medical emergency existed
that required the performance of a medical emergency abortion without
fulfilling the requirements of section three.
(c)
A physician who performs an abortion under the circumstances described in
subsection (a) of this section shall, not later than 48 hours after the
abortion is performed, send a written notice that a medical emergency occurred
and that the parent, managing conservator, or guardian may contact the
physician for more information and medical records, to the last known address
of the parent, managing conservator, or guardian by certified mail, restricted
delivery, return receipt requested. The physician may rely on last known address
information if a reasonable and prudent person, under similar circumstances,
would rely on the information as sufficient evidence that the parent, managing
conservator, or guardian resides at that address. The physician shall keep in
the minor?s medical record:
(1)
The return receipt from the written notice; or
(2)
If the notice was returned as undeliverable, the notice.
(d)
A physician who performs an abortion on an unemancipated minor during a medical
emergency as described in subsection (a) of this section shall execute for
inclusion in the medical record of the minor an affidavit that explains the
specific medical emergency that necessitated the immediate abortion.
?16-2F-6. Reporting requirements for physicians.
(a) Any A physician
performing an abortion upon an unemancipated minor shall provide the department
of health secretary a written report of the procedure within thirty
days after having performed the abortion. The department of health shall
provide reporting forms for this purpose to all physicians and public health
facilities required to be licensed pursuant to article five-b of this chapter.
The following information, in addition to any other information which may be
required by the department of health secretary, regarding the
minor an unemancipated minor receiving the abortion shall be
included in such the reporting form:
(1) Age;
(2) Educational level;
(3) Previous pregnancies;
(4) Previous live births;
(5) Previous abortions;
(6) Complications, if any, of the abortion being reported;
(7) Reason for waiver of notification, of the minor?s parent or
guardian, if such notice was waived; and
(8) The city and county in which the abortion was performed.
(b) Any such The report
shall not contain the name, address or other information by which the minor
unemancipated minor receiving the abortion may be identified.
?16-2F-8. Penalties.
Any person who knowingly performs an abortion upon an
unemancipated minor in violation of this article or who knowingly fails to
conform to any requirement of this article shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than $500 nor more than
$1,000 or imprisoned in the county jail not more than thirty days, or both
fined and imprisoned.
?(a) Any physician or other
licensed medical practitioner who intentionally or recklessly performs or
induces an abortion in violation of this article is considered to have acted
outside the scope of practice permitted by law or otherwise in breach of the
standard of care owed to patients, and is subject to discipline from the
applicable licensure board for that conduct, including, but not limited to,
loss of professional license to practice.
(b) A person, not subject to subsection (a) of this section, who
intentionally or recklessly performs or induces an abortion in violation of
this article is considered to have engaged in the unauthorized practice of
medicine in violation of section thirteen, article three, chapter thirty of
this code, and upon conviction, subject to the penalties contained in that
section.
(c) In addition to the penalties set forth in subsections (a) and
(b) of this section, a patient may seek any remedy otherwise available to such
patient by applicable law.
(d) No penalty may be assessed against any
patient upon whom an abortion is performed or induced or attempted to be
performed or induced.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2002 ? ?A Bill to amend and reenact
?16-2F-1, ?16-2F-2, ?16-2F-3, ?16-2F-4, ?16-2F-5, ?16-2F-6 and ?16-2F-8 and of
the Code of West Virginia, 1931, as amended, all relating to parental
notification of abortions performed on unemancipated minors; setting out
legislative findings; defining terms; clarifying parental notification
requirements prior to performing an abortion on an unemancipated minor;
modifying waiver language; providing exceptions; providing a judicial process
to not permit parental notification; requiring parental notice following
abortion due to medical emergency; requiring reporting; providing for
disciplinary actions; and modifying penalties.?
On
the motion to concur, the yeas and nays were demanded, which demand was
sustained.
??????????? The
yeas and nays having been ordered they were taken (Roll No. 540), and there were--yeas 75, nays 23, absent and not
voting 2, with the nays and absent and not voting being as follows:
??????????? Nays: Atkinson, Baldwin, Barrett,
Brewer, Caputo, Diserio, Ellington, E. Evans, Fleischauer, Fluharty,
Hornbuckle, Longstreth, Love, Miley, R. Miller, Pethtel, Pushkin, Pyles, Robinson,
Rowe, Shott, Storch and Ward.
??????????? Absent and Not Voting: Kessinger and
Lynch.
??????????? So, a majority of the members present
and voting having voted in the affirmative, the House concurred in the Senate
amendments.
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? The
question being on the passage of the bill, the yeas and nays were taken (Roll No. 541), and there were--yeas
82, nays 17, absent and not voting 1, with the nays and absent and not voting
being as follows:
??????????? Nays: Baldwin, Barrett, Caputo,
Diserio, Ellington, E. Evans, Fleischauer, Hornbuckle, Longstreth, Love, Miley,
Pethtel, Pushkin, Pyles, Robinson, Rowe and Shott.
??????????? Absent and Not Voting: Kessinger.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2002) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2711, Abolishing regional educational service agencies and
providing for the transfer of property and records.
??????????? Delegate Cowles moved that the House
of Delegates concur in the following amendment of the bill by the Senate, with
further amendment:
??????????? On page nine, after the article
heading, by inserting the following:
??18-2E-1a. Standards, Assessment assessment and accountability programs; duties of
the state board.
(a) In order to further the purpose of this article, on
or before the first day of January, one thousand nine hundred ninety-nine, Prior
to adoption or revision of academic standards in mathematics, English language
arts, science and social studies, the state board shall develop and
recommend to the constructively engage with the legislative
oversight commission on education accountability as outlined in subsection
(b). Prior to adoption of a new statewide summative assessment, the state board
shall constructively engage with the legislative oversight commission on
education accountability on the an assessment program it intends
to adopt to measure the progress of public school students in attaining a
high quality education. In addition, to further the purposes of this
article, on or before the first day of January, one thousand nine hundred
ninety-nine, the Prior to the full implementation of a new
accountability system, state board shall develop and recommend to the
legislative oversight commission on education accountability an accountability
program to help ensure a thorough and efficient system of schools. In
developing the standards, assessment program and the accountability
program, the state board shall take into consideration recommendations arising
from any legislative interim study undertaken at the direction of the joint
committee on government and finance and also shall take into consideration any
recommendations made by the legislative oversight commission on education
accountability.
(b) As part of their on-going responsibility for developing
and implementing a program of standards, assessments and a program of
accountability, the state board shall perform the following functions:
(1) Is prohibited from implementing the Common Core
academic standards;
(2) Shall allow West Virginia educators the opportunity to
participate in the development of the academic standards;
(3) Shall provide by rule for a cyclical review, by West
Virginia educators, of any academic standards that are proposed by the state
board;
(2) Review (4) Shall review
assessment tools, including tests of student performance and measures of school
and school system performance, and determine when any improvements or additions
are necessary;
(3) Consider (5) Shall consider
multiple assessments, including, but not limited to, a state testing program
developed in conjunction with the state?s professional educators with
assistance from such knowledgeable consultants as may be necessary, which may
include criterion referenced tests;
(6) Is prohibited from adopting the Smarter Balanced
Assessment system or the PARCC assessment system as the statewide summative
assessment;
(4) Review (7) Shall review all
accountability measures, such as the accreditation and personnel evaluation
systems and consider any improvements or additions deemed necessary; and
(5) Ensure (8) Shall ensure that
all statewide assessments of student performance are secure.
(c) The state board shall not adopt any national or
regional testing program tied to federal funding, or national or regional
academic standards tied to federal funding, without oversight by the
legislative oversight commission on education accountability.
On page nine, section five, line
nineteen, after the word ?Legislature?, by inserting the words ?as provided in
section one, article two-h of this chapter?.
On page eleven, section five, line
sixty-nine, by striking out the word ?Curriculum? and inserting in lieu thereof
the words ?Academic standards?.
On page thirteen, section five, line one
hundred one, by striking out the word ?nine? and inserting in lieu thereof the
word ?eight?.
On page thirteen, section five, line one
hundred one, by striking out the word ?ten? and inserting in lieu thereof the
word ?nine?.
On page thirteen, section five, lines
one hundred five through one hundred nine, by striking out all of subdivision
(3) and inserting in lieu thereof a new subdivision (3), to read as follows:
?(3) In accordance with articles two and
two-e, chapter eighteen of this code, the state board shall review or develop,
and adopt a college and career readiness assessment to be administered in grade
eleven: Provided, That the adopted
college and career readiness assessment administered in grade eleven counts
toward the statewide student assessment and must be used by a significant
number of regionally accredited higher education institutions for determining
college admissions.?
On page thirteen, section five, line one
hundred twenty-two, by striking out the word ?and?.
On page fourteen, section five, line one
hundred twenty-five, by changing the period to a semicolon and adding the word
?and?.
On page fourteen, section five, after
line one hundred twenty-five, by inserting four new subdivisions,
designated? subdivisions (7), (8), (9)
and (10), to read as follows:
?(7) The comprehensive statewide student
assessment adopted prior to the testing window of the 2017-2018 school year
shall continue to be used for at least a total of four consecutive years;
(8) No summative assessment approved by
the state board may take more than two percent of a student?s instructional
time;
(9) No student may be required to
complete a greater number of summative assessments than is required by the
Every Student Succeeds Act except as otherwise required by this subsection; and
(10) Collection of personal data as part
of the assessment process except for what is necessary for the student?s
instruction, academic and college and career search needs is prohibited.?
On page twenty-nine, section five, line
five hundred eight, by striking out the words ?Providing or recommending to?
and inserting in lieu thereof the word ?Recommending?.
On page twenty-nine, section five, line
five hundred thirteen, by striking out the words ?Allocating funds? and
inserting in lieu thereof the words ?Directing educational expertise and
support services?.
On pages forty through forty-six, by
striking out all of section thirteen-c and inserting in lieu thereof a new
section thirteen-c, to read as follows:
??18‑5‑13c.
Educational services cooperatives; purpose; establishment; governance;
authorized functions and services.
(a)
Pursuant to subsection (q), section thirteen of this article, a county board is
authorized to enter into a cooperative agreement with one or more other county
boards to establish educational services cooperatives which shall serve as
regional units to provide for high quality, cost effective lifelong education
programs and services to students, schools, school systems, and communities in
accordance with this section. Each educational services cooperative may serve
as a regional public multi-service agency to develop, manage, and provide such
services or programs as determined by its governing council and as provided in
this section or otherwise provided in this code.? All references in this code to regional
education service agencies or RESA?s mean an educational services cooperative
as authorized under this section.
(b) The
regional education service agencies previously established by section
twenty-six, article two of this chapter and W. Va. 126CSR72, filed October 15,
2015, and effective November 16, 2015, shall remain and may continue to operate
in accordance with said section and rule unless and until modified by a
cooperative agreement entered into by county boards within the boundaries of
the agency or dissolved by said county boards: Provided, That on July 1, 2018, the regional education service
agencies as provided under prior provisions of section twenty-six, article two
of this chapter are dissolved. If a regional education service agency is
reconfigured pursuant to a cooperative agreement or is dissolved, all property,
equipment and records held by the regional education service agency necessary
to effectuate the purposes of this section shall be transferred or liquidated
and disbursed in accordance with the?
following priority order: (1) To any successor educational services
cooperative substantially covering the same geographical area; (2) To the
county boards who were members of the regional education service agency as
agreed upon by those counties; or (3) To the state board or to other
appropriate entities as provided by law.
??????????? (c)
An educational services cooperative shall be under the direction and control of
a governing council consisting of the following members:?
(1) The
county superintendent of each county participating in the cooperative
agreement;
(2) A
member of the board of education from each county participating in the
cooperative agreement selected by the county board of education as provided in
the bylaws of the governing council of the educational services cooperative;
and
(3) The
following representatives, if any, to be selected by the educational services
cooperative administrator with the consent of the governing council:
(A)
Representatives of institutions of higher education and community and technical
colleges serving the geographical area covered by the educational services
cooperative;
(B)? One non-superintendent chief instructional
leader employed by a member county;
(C) One
school principal employed by a member county;
(D) One
teacher employed by a member county; and
(E)
Additional members representing business and industry, or other appropriate
entities, as the governing council determines fit to meet its responsibilities.
(d) The
governing council of an educational services cooperative:
(1)
Shall adopt bylaws concerning the appointment and terms of its members,
including the authorization of designees by its members, the selection of
officers and their terms, the filling of vacancies, the appointment of task
forces and study groups, the evaluation of the executive director and staff and
any other provisions necessary for the operation of the educational services
cooperative. A quorum for governing council meetings shall be a simple majority
of the number of members of each governing council;
(2)
Shall appoint an individual to serve as the educational services cooperative
administrator who shall serve at the will and pleasure of the governing council
and shall implement the policies of the governing council.
(3) May
employ regular full-time and part-time staff, as necessary, after a majority of
the members of a governing council, by vote, verify that such employment is
necessary for effective provision of services and to perform services or other
projects that may require staff and support services for effective
implementation. Staff who are hired into a position that requires a specified
certification must maintain the certification for the duration of employment.
The governing council is the sole employer of the educational services
cooperative?s personnel it employs and shall be responsible for any benefit and
liability programs necessitated by such employment. Employees of the
educational services cooperative are considered state employees for the
purposes of participation in the state?s public employees? insurance and
retirement programs.? A recipient of
personnel services from the educational services cooperative is not deemed an
employer because of the exercise of supervision or control over any personnel
services provided;
(4) May
purchase, hold, encumber and dispose of real property, in the name of the
educational services cooperative, for use as its office or for any educational
service provided by the educational services cooperative if a resolution to do
so is adopted by a two−thirds vote of the members of the governing
council and then approved by three−fourths of the county boards in the
educational services cooperative by majority vote of each county board;
(5)
Shall operate as Local Educational Agencies (LEA?s) for financial purposes,
including grants and cooperative purchasing, and collectively as essential
agencies responsible for performing service functions to the total community.
An educational services cooperative is eligible as an LEA to participate in
partnership with or on behalf of any county school system or school in those
programs that will accomplish implementation of the strategic plan and/or state
education initiative of the system or school, or to further statutory
priorities consistent with educational services cooperative operations;
(6) May
receive, expend and disburse funds from the state and federal governments, from
member counties, or from gifts and grants and may contract with county boards
of education, the West Virginia Department of Education, institutions of higher
education, persons, companies, or other agencies to implement programs and
services at the direction of the council.?
The state board, department of education, or any member county board may
request implementation of programs and services by the educational services
cooperative. An educational services cooperative may also receive funds from profit-generating
enterprises, the funds of which will contribute to the educational services
cooperative initiatives.? Each
educational services cooperative is encouraged to partner with member school
systems, particularly those designated as low-performing, and other
organizations as appropriate to attract and leverage resources available from
federal programs to maximize its capacity for meeting the needs of member
schools and school systems.? Educational
services cooperatives are recognized as eligible LEA?s for the purposes of
applying, on behalf of school systems, for grant funds consistent with
performing regional services and functions and/or supportive of education
initiatives of the educational services cooperative;
(7) Upon
the request of one or more county boards of education, or by the state board as
permitted or contracted, and if directed by law, an educational services
cooperative may assume responsibility for one or more functions otherwise
performed by one or more county boards of education;
(8) May
offer technical assistance, including targeted comprehensive staff development
services, or other technical assistance to any member school or school system,
and give priority to those schools and school systems that are found to be out
of compliance with a state law or federal law;
(9) May
serve as repositories of research-based teaching and learning practices, and
shall use technology, particularly web-based technology, to ensure maximum
access to such practices by public schools in the region and state; and
(10)
Shall develop and/or implement any other programs or services as directed by
law or the governing council, or requested by individual member counties or
groups of member counties subject to available funds.? The Legislature expects that the assistance
and programs developed and/or implemented by the educational services
cooperatives may differ among the schools, counties and educational services
cooperatives.
(d) The
administrator of each educational services cooperative shall
submit annually a plan to the governing council that
identifies the programs and services which are suggested for implementation by
the educational services cooperative during the following year.? The plan shall contain components of
long-range planning determined by the governing council. These programs and
services may include, but are not limited to, the following areas:
(1)
Administrative services;
??? (2) Curriculum
development;
??? (3) Data
processing;
??? (4) Distance
learning and other telecommunication services;
??? (5) Evaluation
and research;
(6)
Staff development;
(7)
Media and technology centers;
(8)
Publication and dissemination of materials;
(9)
Pupil personnel services;
(10)
Planning;
(11)
Secondary, postsecondary, community, adult, and adult vocational education;
(12)
Teaching and learning services, including services for students with special
talents and special needs;
(13)
Employee personnel and employment services;
(14)
Vocational rehabilitation;
(15)
Health, diagnostic, and child development services and centers;
(16)
Leadership or direction in early childhood and family education;
(17)
Community services;
(18)
Fiscal services and risk management programs;
(19)
Legal services;
(20)
Technology planning, training, and support services;
(21)
Health and safety services;
(22)
Student academic challenges;
(23)
Cooperative purchasing services; and
(24)
Other programs and services as may be provided pursuant to other provisions of
this Code.
(e) The educational services cooperative
administrator, with advice and assistance of the governing council, may select
as its fiscal agent one of the county boards of education comprising the
educational services cooperative. The county board so selected may maintain a
separate bank account or accounts for the receipt and disbursement of all
educational services cooperative funds and perform the accounting functions
specified in the policies adopted by the state board. A county board of education
serving as a fiscal agent may not initiate action, direct the programs or
substitute its judgment for that of the educational services cooperative
administrator as advised by the governing council. The county board of
education may reject an action of the educational services cooperative
administrator if sufficient funds are not available, or if it perceives a legal
conflict. The educational services cooperative administrator shall make
arrangements for an annual audit to be conducted in accordance with the
requirements of the OMB Uniform Guidance4 (2 C.F.R. 200) and the cost of the
audit shall be incurred by the educational services cooperative. Prior to
making those arrangements, the educational services cooperative administrator
must coordinate with the respective fiscal agent to ensure the audit addresses
all applicable issues.
(f) Notwithstanding any other provision
of this code to the contrary, employees of educational services cooperatives
shall be reimbursed for travel, meals and lodging at the same rate as state
employees under the travel management office of the Department of
Administration.
(g)
Notwithstanding any other provision of this code to the contrary, county board
members serving on governing councils of educational services cooperatives may
receive compensation at a rate not to exceed $100 per meeting attended, not to
exceed fifteen meetings per year. County board members serving on governing
councils may be reimbursed for travel at the same rate as state employees under
the rules of the travel management office of the Department of Administration.
A county board member may not be an employee of an educational services
cooperative.?
On pages forty-six through
fifty-one,? by striking out all of
section forty-five and inserting in lieu thereof a new section forty-five, to
read as follows:
??18-5-45.? School calendar.
(a) As used in this section:
(1)
?Instructional day? means a day within the instructional term which meets the
following criteria:
(A)
Instruction is offered to students for at least the minimum amount of hours
provided by a state board rule;
(B)
Instructional time is used for instruction and cocurricular activities; and
(C)
Other criteria as the state board determines appropriate.
(2)
Cocurricular activities are activities that are closely related to identifiable
academic programs or areas of study that serve to complement academic curricula
as further defined by the state board.
(b)
Findings. ?
(1)
The primary purpose of the school system is to provide instruction for
students.
(2)
The school calendar, as defined in this section, is designed to define the
school term both for employees and for instruction.
(3)
The school calendar shall provide for one hundred eighty separate
instructional days.
(c)
The county board shall provide a school term for its schools that contains the
following:
(1)
An employment term that excludes Saturdays and Sundays and consists of at least
two hundred days, which need not be successive. The beginning and closing dates
of the employment term may not exceed forty-eight weeks;
(2)
Within the employment term, an instructional term for students of no less than
one hundred eighty separate instructional days, which includes an
inclement weather and emergencies plan designed to guarantee an instructional
term for students of no less than one hundred eighty separate
instructional days;
?(3) Within the employment term,
noninstructional days shall total twenty and shall be comprised of the
following:
(A)
Seven paid holidays;
(B)
Election day as specified in section two, article five, chapter eighteen-a of
this code;
(C)
Six days to be designated by the county board to be used by the employees
outside the school environment, with at least four outside the school environment
days scheduled to occur after the one hundred thirtieth instructional day of
the school calendar; and
(D)
One day to be designated by the county board to be used by the employees for
preparation for opening school and one day to be designated by the county board
to be used by the employees for preparation for closing school: Provided, That the school preparation
days may be used for the purposes set forth in paragraph (E) of this
subdivision at the teacher?s discretion; and
(D) (E) The remaining
days to be designated by the county board for purposes to include, but not be
limited to:
(i)
Curriculum development;
(ii)
Preparation for opening and closing school;
(iii) (ii) Professional
development;
(iv) (iii)
Teacher-pupil-parent conferences;
(v) (iv) Professional
meetings;
(vi) (v) Making up days
when instruction was scheduled but not conducted; and
(vii) (vi) At least four
six two-hour blocks of time for faculty senate meetings with each a at least one two-hour block of time
scheduled in the first month of the employment term, at least one two-hour
block of time scheduled in the last month of the employment term and once
at least every forty-five instructional days at least one two-hour block
of time scheduled in each of the months of October, December, February and
April; and
(4)
Scheduled out-of-calendar days that are to be used for instructional days in
the event school is canceled for any reason.
(d)
A county board of education shall develop a policy that requires additional
minutes of instruction in the school day or additional days of instruction to
recover time lost due to late arrivals and early dismissals first. Any
remaining minutes accrued may be used for instructional minutes or days lost
due to inclement weather or emergencies.
(e)
If it is not possible to complete one hundred eighty separate
instructional days with the current school calendar, the county board shall
schedule instruction on any available noninstructional day, regardless of the
purpose for which the day originally was scheduled, or an out-of-calendar day
and the day will be used for instruction of students: Provided, That the provisions of this subsection do not apply to:
(A)
Holidays;
(B)
Election day;
(C)
Saturdays and Sundays.
(f)
The instructional term shall commence and terminate on a date selected by the
county board.
(g)
The state board may not schedule the primary statewide assessment program more
than thirty days prior to the end of the instructional year unless the state
board determines that the nature of the test mandates an earlier testing date.
(h)
The following applies to cocurricular activities:
(1)
The state board shall determine what activities may be considered cocurricular;
(2)
The state board shall determine the amount of instructional time that may be
consumed by cocurricular activities; and
(3)
Other requirements or restrictions the state board may provide in the rule
required to be promulgated by this section.
(i)
Extracurricular activities may not be used for instructional time.
(j)
Noninstructional interruptions to the instructional day shall be minimized to
allow the classroom teacher to teach.
(k)
Prior to implementing the school calendar, the county board shall secure
approval of its proposed calendar from the state board or, if so designated by
the state board, from the state superintendent.
(l)
In formulation of a school?s calendar, a county school board shall hold at
least two public meetings that allow parents, teachers, teacher organizations,
businesses and other interested parties within the county to discuss the school
calendar. The public notice of the date, time and place of the public hearing
must be published in a local newspaper of general circulation in the area as a
Class II legal advertisement, in accordance with the provisions of article
three, chapter fifty-nine of this code.
(m)
The county board may contract with all or part of the personnel for a longer
term of employment.
(n)
The minimum instructional term may be decreased by order of the state
superintendent in any county declared a federal disaster area and where the
event causing the declaration is substantially related to a reduction of
instructional days.
(o)
Notwithstanding any provision of this code to the contrary, the state board may
grant a waiver to a county board for its noncompliance with provisions of
chapter eighteen, eighteen-a, eighteen-b and eighteen-c of this code to
maintain compliance in reaching the mandatory one hundred eighty separate
instructional days established in this section.
(p)
The use of reimagining student instructional days to achieve the one hundred
eighty instructional day requirement is strongly encouraged in order to
minimize scheduling instructional days too early or late in the school year.
(p)
(q) The state board shall promulgate a rule in accordance with the
provisions of article three-b, chapter twenty-nine-a of this code for the
purpose of implementing the provisions of this section.
(q) The amendments to this section
during the 2013 regular session of the Legislature shall be effective for
school years beginning on or after July 1, 2014, and the provisions of this
section existing immediately prior to the 2013 regular session of the Legislature
remain in effect for school years beginning prior to July 1, 2014.?
On page fifty-one, after line one
hundred twenty-four, by inserting the following:
?ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
?18‑5A‑5. Public school faculty
senates established; election of officers; powers and duties.
(a)
There is established at every public school in this state a faculty senate
which is comprised of all permanent, full‑time professional educators
employed at the school who shall all be voting members. ?Professional educators?,
as used in this section, means ?professional educators? as defined in chapter
eighteen‑a of this code. A quorum of more than one half of the voting
members of the faculty shall be present at any meeting of the faculty senate at
which official business is conducted. Prior to the beginning of the
instructional term each year, but within the employment term, the principal
shall convene a meeting of the faculty senate to elect a chair, vice chair and
secretary and discuss matters relevant to the beginning of the school year. The
vice chair shall preside at meetings when the chair is absent. Meetings of the
faculty senate shall be held during the times provided in accordance with
subdivision (12), subsection (b) of this section as determined by the faculty senate.
Emergency meetings may be held during noninstructional time at the call of the
chair or a majority of the voting members by petition submitted to the chair
and vice chair. An agenda of matters to be considered at a scheduled meeting of
the faculty senate shall be available to the members at least two employment
days prior to the meeting. For emergency meetings the agenda shall be available
as soon as possible prior to the meeting. The chair of the faculty senate may
appoint such committees as may be desirable to study and submit recommendations
to the full faculty senate, but the acts of the faculty senate shall be voted
upon by the full body.
(b) In
addition to any other powers and duties conferred by law, or authorized by
policies adopted by the state or county board or bylaws which may be adopted by
the faculty senate not inconsistent with law, the powers and duties listed in
this subsection are specifically reserved for the faculty senate. The intent of
these provisions is neither to restrict nor to require the activities of every
faculty senate to the enumerated items except as otherwise stated. Each faculty
senate shall organize its activities as it considers most effective and
efficient based on school size, departmental structure and other relevant
factors.
(1) Each
faculty senate shall control funds allocated to the school from legislative
appropriations pursuant to section nine, article nine‑a of this chapter.
From those funds, each classroom teacher and librarian shall be allotted $100
for expenditure during the instructional year for academic materials, supplies
or equipment which, in the judgment of the teacher or librarian, will assist
him or her in providing instruction in his or her assigned academic subjects or
shall be returned to the faculty senate: Provided, That nothing
contained herein prohibits the funds from being used for programs and materials
that, in the opinion of the teacher, enhance student behavior, increase
academic achievement, improve self-esteem and address the problems of students
at risk. The remainder of funds shall be expended for academic materials,
supplies or equipment in accordance with a budget approved by the faculty
senate. Notwithstanding any other provisions of the law to the contrary, funds
not expended in one school year are available for expenditure in the next
school year: Provided, however, That the amount of county funds budgeted
in a fiscal year may not be reduced throughout the year as a result of the
faculty appropriations in the same fiscal year for such materials, supplies and
equipment. Accounts shall be maintained of the allocations and expenditures of
such funds for the purpose of financial audit. Academic materials, supplies or
equipment shall be interpreted broadly, but does not include materials,
supplies or equipment which will be used in or connected with interscholastic
athletic events.
(2) A
faculty senate may establish a process for members to interview or otherwise
obtain information regarding applicants for classroom teaching vacancies that
will enable the faculty senate to submit recommendations regarding employment
to the principal. To facilitate the establishment of a process that is timely,
effective, consistent among schools and counties, and designed to avoid
litigation or grievance, the state board shall promulgate a rule pursuant to
article three-b, chapter twenty-nine-a of this code to implement the provisions
of this subdivision. The rule may include the following:
(A) A
process or alternative processes that a faculty senate may adopt;
(B) If
determined necessary, a requirement and procedure for training for principals
and faculty senate members or their designees who may participate in interviews
and provisions that may provide for the compensation based on the appropriate
daily rate of a classroom teacher who directly participates in the training for
periods beyond his or her individual contract;
(C) Time
lines that will assure the timely completion of the recommendation or the
forfeiture of the right to make a recommendation upon the failure to complete a
recommendation within a reasonable time;
(D) The
authorization of the faculty senate to delegate the process for making a
recommendation to a committee of no less than three members of the faculty
senate; and
(E) Such
other provisions as the state board determines are necessary or beneficial for
the process to be established by the faculty senate.
(3) A
faculty senate may nominate teachers for recognition as outstanding teachers
under state and local teacher recognition programs and other personnel at the
school, including parents, for recognition under other appropriate recognition
programs and may establish such programs for operation at the school.
(4) A
faculty senate may submit recommendations to the principal regarding the assignment
scheduling of secretaries, clerks, aides and paraprofessionals at the school.
(5) A
faculty senate may submit recommendations to the principal regarding
establishment of the master curriculum schedule for the next ensuing school
year.
(6) A
faculty senate may establish a process for the review and comment on sabbatical
leave requests submitted by employees at the school pursuant to section eleven,
article two of this chapter.
(7) Each
faculty senate shall elect three faculty representatives to the local school
improvement council established pursuant to section two of this article.
(8) Each
faculty senate may nominate a member for election to the county staff
development council pursuant to section eight, article three, chapter eighteen‑a
of this code.
(9) Each
faculty senate shall have an opportunity to make recommendations on the
selection of faculty to serve as mentors for beginning teachers under beginning
teacher internship programs at the school.
(10) A
faculty senate may solicit, accept and expend any grants, gifts, bequests,
donations and any other funds made available to the faculty senate: Provided,
That the faculty senate shall select a member who has the duty of maintaining a
record of all funds received and expended by the faculty senate, which record
shall be kept in the school office and is subject to normal auditing
procedures.
(11) Any
faculty senate may review the evaluation procedure as conducted in their school
to ascertain whether the evaluations were conducted in accordance with the
written system required pursuant to section twelve, article two, chapter
eighteen‑a of this code or pursuant to section two, article three-c,
chapter eighteen-a of this code, as applicable, and the general intent of this
Legislature regarding meaningful performance evaluations of school personnel.
If a majority of members of the faculty senate determine that such evaluations
were not so conducted, they shall submit a report in writing to the State Board
of Education: Provided,
That nothing herein creates any new right of access to or review of any
individual?s evaluations.
(12) A
local board shall provide to each faculty senate a at least six
two‑hour block blocks of time for a faculty senate meeting
meetings on a day scheduled for the opening of school prior to the
beginning of the instructional term and at least four additional two-hour
blocks of time during noninstructional days, with each two-hour block of time
scheduled once at least every forty-five instructional days with at
least one two-hour block of time scheduled in the first month of the employment
term, one two-hour block of time scheduled in the last month of the employment
term and at least one two-hour block of time scheduled in each of the months of
October, December, February and April. A faculty senate may meet for an
unlimited block of time during noninstructional days to discuss and plan
strategies to improve student instruction and to conduct other faculty senate
business. A faculty senate meeting scheduled on a noninstructional day shall be
considered as part of the purpose for which the noninstructional day is
scheduled. This time may be used and determined at the local school level and
includes, but is not limited to, faculty senate meetings.
(13)
Each faculty senate shall develop a strategic plan to manage the integration of
special needs students into the regular classroom at their respective schools
and submit the strategic plan to the superintendent of the county board
periodically pursuant to guidelines developed by the State Department of
Education. Each faculty senate shall encourage the participation of local
school improvement councils, parents and the community at large in developing
the strategic plan for each school.
Each
strategic plan developed by the faculty senate shall include at least: (A) A
mission statement; (B) goals; (C) needs; (D) objectives and activities to
implement plans relating to each goal; (E) work in progress to implement the
strategic plan; (F) guidelines for placing additional staff into integrated
classrooms to meet the needs of exceptional needs students without diminishing
the services rendered to the other students in integrated classrooms; (G)
guidelines for implementation of collaborative planning and instruction; and
(H) training for all regular classroom teachers who serve students with
exceptional needs in integrated classrooms.?
On
page fifty-two, section fourteen, line fifteen, by striking out everything
after the period and inserting in lieu thereof the following:
?Educators
shall receive uninterrupted time for planning periods each day.? Administrators may not require a teacher to
use the planning period time allotted to complete duties beyond instructional
planning, including, but not limited to, administrative tasks and meetings.?
And,
On
page one, by striking out the enacting section and inserting in lieu thereof a
new enacting section, to read as follows:
?That ?18-2-26a of the Code of West Virginia,
1931, as amended, be repealed; that ?18-2-26 of said code be amended and
reenacted; that ?18-2E-1a and ?18-2E-5 of said code be amended and reenacted;
that ?18-5-13 and ?18-5-45 of said code be amended and reenacted; that said
code be further amended by adding thereto two new sections designated,
?18-5-13b and ?18-5-13c; that ?18-5A-5 of said code be amended and reenacted;
that ?18-9A-8a of said code be amended and reenacted; and that ?18A-4-14 of
said code be amended and reenacted, all to read as follows? and a colon.
??????????? Delegate Espinosa moved to amend the
Senate amendment on page eleven, by striking out ?18-5-45 in its entirety and
inserting in lieu thereof the following:
??18‑5‑45.
School calendar.
(a) As used in this section:
(1) ?Instructional day? means a day within the instructional term
which meets the following criteria:
(A) Instruction is offered to students for at least the minimum amount
of hours provided by state board rule number of minutes as follows:
(i) For early childhood programs as provided in subsection (d)
section forty-four of this article;
(ii) For schools with grade levels kindergarten through and
including grade five, 315 minutes of instructional time per day;
(iii) For schools with grade levels six through and including
grade eight, 330 minutes of instructional time per day; and
(iv) For schools with grade levels nine through and including
grade twelve, 345 minutes of instructional time per day.
?(B) Instructional time is
used for instruction and cocurricular activities; and
(C) Other criteria as the state board determines appropriate.
(2) ?Cocurricular activities? are activities that are closely
related to identifiable academic programs or areas of study that serve to
complement academic curricula as further defined by the state board; and
(3) ?Instruction delivered through alternative methods? means a
plan developed by a county board and approved by the state board for teachers
to assign and grade work to be completed by students on days when schools are
closed due to inclement weather or other unforeseen circumstances.
(b) Findings. ?
(1) The primary purpose of the school system is to provide
instruction for students.
(2) The school calendar, as defined in this section, is designed
to define the school term both for employees and for instruction.
(3) The school calendar shall provide for one hundred eighty
separate instructional days or an equivalent amount of instructional time as
provided in this section.
(c) The county board shall provide a school term for its schools
that contains the following:
(1) An employment term that excludes Saturdays and Sundays and
consists of at least two hundred days, which need not be successive. The
beginning and closing dates of the employment term may not exceed forty-eight
weeks;
(2) Within the employment term, an instructional term for students
of no less than one hundred eighty separate instructional days, which includes
an inclement weather and emergencies plan designed to guarantee an
instructional term for students of no less than one hundred eighty separate instructional
days, subject to the following:
(A) A county board may increase the length of the instructional
day as defined in this section by at least thirty minutes per day to ensure
that it achieves at least an amount of instructional time equivalent to one
hundred and eighty separate instructional days within its school calendar and:
(i) Apply up to five days of this equivalent time to cancel days
lost due to necessary school closures;
(ii) Plan within its school calendar and not subject to
cancellation and rescheduling as instructional days up to an additional five
days or equivalent portions of days, without students present, to be used as
determined by the county board exclusively for activities by educators at the
school level designed to improve instruction; and
(iii) Apply any additional equivalent time to recover time lost
due to late arrivals and early dismissals;
(B) Subject to approval of its plan by the state board, a county
board may deliver
instruction through alternative methods on up to five days when schools are
closed due to inclement weather or other unforeseen circumstances and these
days are instructional days notwithstanding the closure of schools; and
(C) The use of equivalent time gained by
lengthening the school day to cancel days lost, and the delivery of instruction
through alternative methods, both as defined in this section, shall be
considered instructional days for the purpose of meeting the 180 separate day
requirement and as employment days for the purpose of meeting the 200 day
employment term.
(3) Within the employment term, noninstructional days shall total
twenty and shall be comprised of the following:
(A) Seven paid holidays;
(B) Election day as specified in section two, article five,
chapter eighteen‑a of this code;
(C) Six days to be designated by the county board to be used by
the employees outside the school environment, with at least four outside the
school environment days scheduled to occur after the one hundred and thirtieth
instructional day of the school calendar; and
(D) One day to be designated by the
county board to be used by the employees for preparation for opening school and
one day to be designated by the county board to be used by the employees for
preparation for closing school: Provided,
That the school preparation days may be used for the purposes set forth in
paragraph (E) of this subdivision at the teacher?s discretion; and
(D) (E) The remaining days to
be designated by the county board for purposes to include, but not be limited
to:
(i) Curriculum development;
(ii) Preparation for opening and closing school;
(iii) (ii) Professional
development;
(iv) (iii) Teacher‑pupil‑parent
conferences;
(v) (iv) Professional
meetings;
(vi) (v) Making up days when
instruction was scheduled but not conducted; and
(vii) (vi) At least four six two-hour
blocks of time for faculty senate meetings with each a at least one two-hour block of time
scheduled in the first month of the employment term, at least one two-hour
block of time scheduled in the last month of the employment term and once
at least every forty-five instructional days at least one two-hour block
of time scheduled in each of the months of October, December, February and
April; and
(4) Scheduled out-of-calendar days that are to be used for
instructional days in the event school is canceled for any reason.
(d) A county board of education shall develop a policy that
requires additional minutes of instruction in the school day or additional days
of instruction to recover time lost due to late arrivals and early dismissals.
(e) If it is not possible to complete one hundred eighty separate
instructional days with the current school calendar and the additional five
days of instructional time gained by increasing the length of the instructional
day as provided in subsection (c) of this section are insufficient to offset
the loss of separate instructional days, the county board shall schedule
instruction on any available noninstructional day, regardless of the purpose
for which the day originally was scheduled, or an out-of-calendar day and the
day will be used for instruction of students: Provided, That the
provisions of this subsection do not apply to:
(A) (1) Holidays;
(B) (2) Election day;
(C) (3) Saturdays and Sundays;
and
(4) The five days or equivalent portions of days planned within
the school calendar exclusively for activities by educators at the school level
to improve instruction that are gained by increasing the length of the
instructional day as provided in subsection (c) of this section.
(f) The instructional term shall commence and terminate on a date
selected by the county board.
(g) The state board may not schedule the primary statewide
assessment program more than thirty days prior to the end of the instructional
year unless the state board determines that the nature of the test mandates an
earlier testing date.
(h) The following applies to cocurricular activities:
(1) The state board shall determine what activities may be
considered cocurricular;
(2) The state board shall determine the amount of instructional
time that may be consumed by cocurricular activities; and
(3) Other requirements or restrictions the state board may provide
in the rule required to be promulgated by this section.
(i) Extracurricular activities may not be used for instructional
time.
(j) Noninstructional interruptions to the instructional day shall
be minimized to allow the classroom teacher to teach.
(k) Prior to implementing the school calendar, the county board
shall secure approval of its proposed calendar from the state board or, if so
designated by the state board, from the state superintendent.
(l) In formulation of a school's calendar, a county school board shall hold at least two
public meetings that allow parents, teachers, teacher organizations, businesses
and other interested parties within the county to discuss the school calendar.
The public notice of the date, time and place of the public hearing must be
published in a local newspaper of general circulation in the area as a Class II
legal advertisement, in accordance with the provisions of article three,
chapter fifty‑nine of this code.
(m) The county board may contract with all or part of the
personnel for a longer term of employment.
(n) The minimum instructional term may be decreased by order of
the state superintendent in any county declared a federal disaster area and
in any county subject to an emergency or disaster declaration by the Governor
and where when the event causing the declaration is substantially
related to a reduction the loss of instructional days in the
county.
(o) Notwithstanding any provision of this code to the contrary,
the state board may grant a waiver to a county board for its noncompliance with
provisions of chapter eighteen, eighteen‑a, eighteen‑b and eighteen‑c
of this code to maintain compliance in reaching the mandatory one hundred
eighty separate instructional days established in this section.
(p) The state board shall promulgate a rule in accordance with the
provisions of article three‑b, chapter twenty‑nine‑a of this
code for the purpose of implementing the provisions of this section.
??????????? (q)
The amendments to this section during the 2013 regular session of the
Legislature shall be effective for school years beginning on or after July 1,
2014, and the provisions of this section existing immediately prior to the 2013
regular session of the Legislature remain in effect for school years beginning
prior to July 1, 2014.?
??????????? On the motion to concur in the
amendment of the bill by the Senate, with further amendment by the House, the
yeas and nays were demanded, which demand was sustained.
??????????? The yeas and nays having been
ordered, they were taken (Roll No. 542), and there were--yeas
59, nays 41, absent and not voting none, with the nays being as follows:
??????????? Nays: Baldwin, Barrett, Brewer,
Canestraro, Caputo, Diserio, Eldridge, E. Evans, Ferro, Fleischauer, Fluharty,
Folk, Frich, Hartman, Hicks, Hornbuckle, Iaquinta, Isner, Kelly, Lewis,
Longstreth, Love, Lovejoy, Lynch, Marcum, McGeehan, Miley, R. Miller, Moye,
Paynter, Pethtel, Pyles, Queen, Rodighiero, Rohrbach, Rowe, Sponaugle, Storch,
Thompson, Ward and Williams.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the House of Delegates concurred
in the Senate amendment as amended.
??????????? The bill, as amended by the Senate,
and further amended by the House of Delegates, was put upon its passage.
??????????? The question being on the passage of
the bill, the yeas and nays were taken (Roll
No. 543), and there were--yeas 69, nays 31, absent and not voting none,
with the nays being as follows:
??????????? Nays: Barrett, Butler, Canestraro,
Diserio, Eldridge, E. Evans, Ferro, Fluharty, Folk, Hicks, Hornbuckle,
Iaquinta, Kelly, Lewis, Love, Lynch, Marcum, Martin, McGeehan, Miley, R.
Miller, Paynter, Phillips, Pyles, Queen, Rodighiero, Sponaugle, Storch,
Thompson, Wagner and Williams.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2711) passed.
??????????? On motion of Delegate Espinosa, the
title of the bill was amended to read as follows:
Com.
Sub. for H. B. 2711 ? ?A
Bill to repeal ?18-2-26a of the Code of West Virginia, 1931, as amended; to
amend and reenact ?18-2-26 of said code; to amend and reenact ?18-2E-1a and
?18-2E-5 of said code; to amend and reenact ?18-5-13 and ?18-5-45 of said code;
to further amend said code by adding thereto two new sections designated
?18-5-13b and ?18-5-13c; to amend and reenact ?18-5A-5 of said code; to amend
and reenact ?18-9A-8a of said code; and to amend and reenact ?18A-4-14 of said
code, all relating generally to education; repealing requirement for biennial
meetings of county boards by region; providing for dissolving regional
educational service agencies by certain date; allowing for modification and
dissolving by cooperative agreement before said date; providing for the
transfer, liquidation or disbursement of property and records; requiring state
board to constructively engage with the legislative oversight commission on
education accountability prior to adopting certain standards and prior to
adoption of a new statewide summative assessment; requiring certain state board
actions before full implementation of a new accountability system; modifying
state board prohibitions and duties as part of its on-going responsibility for
developing and implementing a program of standards, assessments and a program
of accountability; clarifying responsibilities and authority of Legislature and
state board with respect to process for improving education and purposes and
intent of system of accountability; modifying areas for which the state board
is required to adopt high-quality education standards; modifying statewide
assessment program; modifying annual performance measures for accreditation;
requiring county board use of statewide electronic information system;
modifying process for assessing school and school system performance;
eliminating office of education performance audits and authorizing employment
of experienced education professionals with certain duties; modifying school accreditation
and removing authorization for state board intervention in school operations;
modifying school system approval and processes for state board intervention;
modifying processes for improving capacity; modifying process for building
leadership capacity of system during intervention; expanding county board
authority for entering into cooperative agreements; establishing the County
Superintendents? Advisory Council; setting forth the council?s authority and
responsibilities, including the formation of four geographic quadrants to carry
out the work of the council; requiring certain meetings and reports;
authorizing county board agreements to establish educational services
cooperatives; providing references to regional education service agencies mean
cooperatives; providing priorities for transfer, liquidation and disbursement
of regional education service agency property, equipment and records upon
dissolution; providing for governing council of educational services
cooperatives; providing for powers and duties; providing for cooperative annual
plan and optional programs and services; providing for selection of fiscal
agent county board and annual audit; providing for staff and member expenses;
providing for member compensation; defining minimum length of instructional
day; defining instruction delivered through alternative methods; allowing
equivalent instructional time alternative to one hundred eighty separate
instructional days; authorizing county board to increase length of
instructional day by certain amount and use instructional time gained for
certain purposes; authorizing delivery of instruction through alternative
methods upon plan approved by state board and counting as instructional and
employment days; designating one noninstructional day for teachers as a
preparation day for opening school and another for teachers as a preparation
day for closing school; allowing teacher preparation days to be used for
certain other purposes at teacher?s discretion; increasing number of two-hour
blocks for faculty senate meetings from four to six; removing requirement that
faculty senate meetings be held once every forty-five days; modifying
requirement for rescheduling days to be used for instruction to reflect
instructional time gained by lengthening instructional day; exempting certain
days from rescheduling when instructional day lengthened; authorizing decrease
of instructional term in county subject to emergency or disaster declaration by
Governor; reducing foundation allowance for regional education service
agencies; removing requirement for planning period to be within instructional
day; requiring educators to receive uninterrupted time for planning periods
each day; prohibiting administrators from requiring a teacher to use the
planning period time to complete duties beyond instructional planning; and
making technical improvements and removing obsolete provisions.?
Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates and request
concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that
the Senate had passed, with amendment, a bill of the House of Delegates, as
follows:
Com.
Sub. for H. B. 2402,
Relating to abandoned antique vehicles.
??????????? On motion of Delegate Cowles, the
House concurred in the following amendment of the bill by the Senate:
On
page eight, section four, line eighty-three, by striking out ?$7,500? and inserting
in lieu thereof $9,500?.
?On page eight, section four, lines eighty-seven
and eighty-eight, by striking out all of subdivision (3) and inserting in lieu
thereof a new subdivision, designated subdivision (3), to read as follows:
?(3)
This amount will be increased every five years on September 1 of the fifth year
based on the U.S. Department of Labor, Bureau of Labor Statistics most current
Consumer Price Index; and?.
And,
On
page eight, section four, after line ninety-four, by inserting a new paragraph,
designated paragraph (D), to read as follows:
(D)
The motor vehicle is not claimed by the owner or a lienholder after notice
within the time set forth in subsection (d) of this section.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 544),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Blair.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker declared
the bill (Com Sub. for H. B. 2402) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that
the Senate had passed, with amendment, to take effect from passage, a bill of
the House of Delegates, as follows:
Com.
Sub. for H. B. 2428,
Establishing additional substance abuse treatment facilities.
??????????? On motion of Delegate
Cowles, the House concurred in the following amendment of the bill by the
Senate:
On
page one, 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 ?16-53-1, ?16-53-2 and ?16-53-3, all to read as follows:??????????
ARTICLE 53. Establishing Additional
Substance AbUse TREATMENT Facilities.
?16-53-1. Establishment of substance
abuse treatment facilities.
(a) The Secretary of the Department of Health
and Human Resources shall ensure that beds for purposes of providing substance
abuse treatment services in existing or newly constructed facilities are made
available in locations throughout the state which the Bureau for Behavioral
Health and Health Facilities determines to be the highest priority for serving
the needs of the citizens of the state.?
(b) The secretary shall identify and allocate
the beds to privately owned facilities to provide substance abuse treatment
services.
(c) These facilities shall:
(1) Give preference to West Virginia
residents;
(2) Accept payment from private pay patients,
third party payors or patients covered by Medicaid;
(3) Offer long term treatment, based upon
need, of up to one year; and
(4) Work closely with the Adult Drug Court
Program, provided for in article fifteen, chapter sixty-two of this code.
(d) Any
facility subject to the provisions of this article must be licensed by this state to provide addiction and
substance abuse services.
?16-53-2.? Establishing the Ryan Brown Addiction
Prevention and Recovery Fund.
The Ryan Brown Addiction Prevention and Recovery Fund is
hereby created in the state treasury as a special revenue account.? The fund shall be administered by the
Secretary of the Department of Health and Human Resources and shall consist of
all moneys made available for the purposes of this article from any source,
including, but not limited to, all grants, bequests or transfers from any
source, any moneys that may be appropriated and designated for those purposes
by the Legislature and all interest or other return earned from investment of
the fund, gifts,
and all other sums available for deposit to the special revenue account from
any source, public or private. Expenditures from the fund shall be for
the purposes set forth in this article and are not authorized from collections
but are to be made only in accordance with appropriation by the Legislature and
in accordance with the provisions of article three, chapter twelve of this code
and upon the fulfillment of the provisions set forth in article two, chapter
eleven-b of this code.? Upon the
effective date of this section, the attorney general and any public official
with custody or control of the proceeds recovered for the state pursuant to
settlement agreement dated January 9, 2017, in that certain civil action then
pending in Boone County, designated Civil Action No. 12-C-141, shall forthwith
transfer, or cause the transfer, of those proceeds into the Ryan Brown
Addiction Prevention and Recovery Fund in the manner directed by the state
treasurer pursuant to articles one and two, chapter twelve of this code and all
other applicable law.
?16-53-3.? Rulemaking.
The
Secretary of the West Virginia Department of Health and Human Resources shall
promulgate emergency rules pursuant to the provisions of section fifteen,
article three, chapter twenty-nine-a of this code to effectuate the provisions
of this article.?
And,
By amending the title of the bill to
read as follows:
?Com.
Sub. for H. B. 2428 - ?A Bill to amend the Code of West Virginia, 1931, as
amended, by adding thereto a new article, designated ?16-53-1, ?16-53-2 and
?16-53-3, all relating to ensuring additional beds for purposes of providing
substance abuse treatment; requiring these beds are made available in locations
throughout the state; providing duties of the Secretary of the Department of
Health and Human Resources; providing for requirements of facilities accepting
funds; requiring facilities be appropriately licensed; creating the Ryan Brown
Addiction Prevention and Recovery Fund; providing for administration of fund by
the Secretary of the Department of Health and Human Resources; providing what
moneys the fund shall consist of ; directing the transfer of money recovered on
behalf of the state arising out of the settlement of a certain civil action to
the fund; and providing for rulemaking.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 545),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Blair.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2428) passed.
??????????? Delegate
Cowles moved that the bill take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 546), and there
were--yeas 99, nays none, absent and not voting 1, with the absent and not
voting being as follows:
??????????? Absent and Not Voting: Blair.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2428) takes effect from its passage.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that
the Senate had passed, with amendment, a bill of the House of Delegates, as
follows:
Com.
Sub. for H. B. 2479,
Uniform Deployed Parents Custody and Visitation Act.
??????????? On motion of Delegate Cowles, the
House concurred in the following amendment of the bill by the Senate:
On
page one, by striking out everything after the enacting clause and inserting in
lieu thereof the following:
?That
?48-1-233.3, ?48-1-233.4 and ?48-9-404 of the Code of West Virginia, 1931, as
amended, be repealed; and that said code be amended by adding thereto a new
article, designated ?48-31-101, ?48-31-102, ?48-31-103, ?48-31-104, ?48-31-105,
?48-31-106, ?48-31-107, ?48-31-201, ?48-31-202, ?48-31-203, ?48-31-204,
?48-31-205, ?48-31-301, ?48-31-302, ?48-31-303, ?48-31-304, ?48-31-305,
?48-31-306, ?48-31-307, ?48-31-308, ?48-31-309, ?48-31-310, ?48-31-401,
?48-31-402, ?48-31-403, ?48-31-404, ?48-31-501, ?48-31-502 and ?48-31-503, all
to read as follows:
ARTICLE 31. UNIFORM DEPLOYED PARENTS CUSTODY
AND VISITATION ACT.
?48-31-101. Short title.
This article may be cited as the Uniform
Deployed Parents Custody and Visitation Act.
?48-31-102. Definitions.
In this article:
(1) ?Adult? means an individual who has
attained eighteen years of age or an emancipated minor.
(2) ?Caretaking authority? means the right to
live with and care for a child on a day-to-day basis. The term includes
physical custody, parenting time, right to access, and visitation.
(3) ?Child? means:
(A) An unemancipated individual who has not
attained eighteen years of age; or
(B) An adult son or daughter by birth or
adoption, or under law of this state other than this article, who is the
subject of a court order concerning custodial responsibility.
(4) ?Close and substantial relationship? means
a relationship in which a significant bond exists between a child and a
nonparent.
(5) ?Court? means a tribunal, authorized under
law of this state other than this article to make, enforce, or modify a
decision regarding custodial responsibility.
(6) ?Custodial responsibility? has the same
meaning as in section two hundred nineteen, article one of this chapter.
(7) ?Decision-making authority? means the
power to make important decisions regarding a child, including decisions
regarding the child?s education, religious training, health care,
extracurricular activities, and travel. The term does not include the power to
make decisions that necessarily accompany a grant of caretaking authority.
(8) ?Deploying parent? means a service member,
who is deployed or has been notified of impending deployment and is:
(A) A parent of a child under law of this
state other than this article; or
(B) An individual who has custodial
responsibility for a child under law of this state other than this article;
(9) ?Deployment? means the movement or
mobilization of a service member for more than ninety days but less than
eighteen months pursuant to uniformed service orders that:
(A) Are designated as unaccompanied;
(B) Do not authorize dependent travel; or
(C) Otherwise do not permit the movement of
family members to the location to which the service member is deployed.
(10) ?Family member? means a sibling, aunt,
uncle, cousin, step-parent or grandparent of a child or an individual
recognized to be in a familial relationship with a child under law of this
state other than this article.
(11) ?Limited contact? means the authority of
a nonparent to visit a child for a limited time. The term includes authority to
take the child to a place other than the residence of the child.
(12) ?Nonparent? means an individual other
than a deploying parent or other parent.
(13) ?Other parent? means an individual who,
in common with a deploying parent, is:
(A) A parent of a child under law of this
state other than this article; or
(B) An individual who has custodial
responsibility for a child under law of this state other than this article.
(14) ?Record? means information that is
inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(15) ?Return from deployment? means the
conclusion of a service member?s deployment as specified in uniformed service
orders.
(16) ?Service member? means a member of a
uniformed service.
(17) ?Sign? means, with present intent to
authenticate or adopt a record:
(A) To execute or adopt a tangible symbol; or
(B) To attach to or logically associate with
the record an electronic symbol, sound or process.
(18) ?State? means a state of the United States,
the District of Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of the United
States.
(19) ?Uniformed service? means:
(A) Active and reserve components of the Army,
Navy, Air Force, Marine Corps or Coast Guard of the United States;
(B) The United States Merchant Marine;
(C) The commissioned corps of the United
States Public Health Service;
(D) The commissioned corps of the National
Oceanic and Atmospheric Administration of the United States; or
(E) The National Guard of a state.
?48-31-103. Remedies for noncompliance.
In addition to other remedies under law of
this state other than this article, if a court finds that a party to a
proceeding under this article has acted in bad faith or intentionally failed to
comply with this article or a court order issued under this article, the court
may assess reasonable attorney?s fees and costs against the party and order
other appropriate relief.
?48-31-104. Jurisdiction.
(a) A court may issue an order regarding
custodial responsibility under this article only if the court has jurisdiction
under the Uniform Child Custody Jurisdiction and Enforcement Act.
(b) If a court has issued a temporary order
regarding custodial responsibility pursuant to this article, the residence of
the deploying parent is not changed by reason of the deployment for the
purposes of the Uniform Child Custody Jurisdiction and Enforcement Act during
the deployment.
(c) If a court has issued a permanent order
regarding custodial responsibility before notice of deployment and the parents
modify that order temporarily by agreement pursuant to the provisions of this
article, the residence of the deploying parent is not changed by reason of the
deployment for the purposes of the Uniform Child Custody Jurisdiction and
Enforcement Act.
(d) If a court in another state has issued a
temporary order regarding custodial responsibility as a result of impending or
current deployment, the residence of the deploying parent is not changed
because of the deployment for the purposes of the Uniform Child Custody
Jurisdiction and Enforcement Act.
(e) This section does not prevent a court from
exercising temporary emergency jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act.
?48-31-105. Notification required of deploying
parent.
(a) Except as otherwise provided in subsection
(c) or (d) of this section, a deploying parent shall notify in a record the
other parent of a pending deployment not later than seven days after receiving
notice of deployment unless reasonably prevented from doing so by the
circumstances of service. If the circumstances of service prevent giving
notification within the seven days, the deploying parent shall give the
notification as soon as reasonably possible.
(b) Except as otherwise provided in subsection
(c) or (d) of this section, each parent shall provide in a record the other
parent with a plan for fulfilling that parent?s share of custodial
responsibility during deployment. Each parent shall provide the plan as soon as
reasonably possible after notification of deployment is given under subsection
(a) of this section.
(c) If a court order currently in effect
prohibits disclosure of the address or contact information of the other parent,
notification of deployment under subsection (a) of this section, or
notification of a plan for custodial responsibility during deployment under
subsection (b) of this section, may be made only to the issuing court. If the
address of the other parent is available to the issuing court, the court shall
forward the notification to the other parent. The court shall keep confidential
the address or contact information of the other parent.
(d) Notification in a record under subsection
(a) or (b) of this section is not required if the parents are living in the
same residence and both parents have actual notice of the deployment or plan.
(e) In a proceeding regarding custodial
responsibility, a court may consider the reasonableness of a parent?s efforts
to comply with this section.
?48-31-106. Duty to notify of change of
address.
(a) Except as otherwise provided in subsection
(b) of this section, an individual to whom custodial responsibility has been
granted during deployment pursuant to the provisions of this article shall
notify the deploying parent and any other individual with custodial
responsibility of a child of any change of the individual?s mailing address or
residence until the grant is terminated. The individual shall provide the
notice to any court that has issued a custody or child support order concerning
the child which is in effect.
(b) If a court order currently in effect
prohibits disclosure of the address or contact information of an individual to
whom custodial responsibility has been granted, a notification under subsection
(a) of this section may be made only to the court that issued the order. The
court shall keep confidential the mailing address or residence of the
individual to whom custodial responsibility has been granted.
?48-31-107. General consideration in custody
proceeding of parent?s military service.
In a proceeding for custodial responsibility
of a child of a service member, a court may not consider a parent?s past
deployment or possible future deployment in itself in determining the best interest
of the child but may consider any significant impact on the best interest of
the child of the parent?s past or possible future deployment.
?48-31-201. Form of agreement addressing
custodial responsibility during deployment.
(a) The parents of a child may enter into a
temporary agreement under this article granting custodial responsibility during
deployment.
(b) An agreement under subsection (a) of this
section shall be:
(1) In writing; and
(2) Signed by both parents and any nonparent
to whom custodial responsibility is granted.
(c) Subject to subsection (d) of this section,
an agreement under subsection (a), if feasible, shall:
(1) Identify the destination, duration, and
conditions of the deployment that is the basis for the agreement;
(2) Specify the allocation of caretaking
authority among the deploying parent, the other parent, and any nonparent;
(3) Specify any decision-making authority that
accompanies a grant of caretaking authority;
(4) Specify any grant of limited contact to a
nonparent;
(5) If under the agreement custodial
responsibility is shared by the other parent and a nonparent, or by other
nonparents, provide a process to resolve any dispute that may arise;
(6) Specify the frequency, duration and means,
including electronic means, by which the deploying parent will have contact
with the child, any role to be played by the other parent in facilitating the
contact, and the allocation of any costs of contact;
(7) Specify the contact between the deploying
parent and child during the time the deploying parent is on leave or is
otherwise available;
(8) Acknowledge that any party?s child-support
obligation cannot be modified by the agreement, and that changing the terms of
the obligation during deployment requires modification in the appropriate court;
(9) Provide that the agreement will terminate
according to the procedures specified in this article after the deploying
parent returns from deployment; and
(10) If the agreement must be filed pursuant
to section two hundred five of this article, specify which parent is required
to file the agreement.
(d) The omission of any of the items specified
in subsection (c) of this section does not invalidate an agreement under this
section.
?48-31-202. Nature of authority created by
agreement.
(a) An agreement under this article is
temporary and terminates pursuant to the provisions of this article after the
deploying parent returns from deployment, unless the agreement has been
terminated before that time by court order or modification under section two
hundred three of this article. The agreement does not create an independent,
continuing right to caretaking authority, decision-making authority or limited
contact in an individual to whom custodial responsibility is given.
(b) A nonparent who has caretaking authority,
decision-making authority or limited contact by an agreement under this article
has standing to enforce the agreement until it has been terminated by court
order, by modification under section two hundred three of this article, or
under other provisions of this article.
?48-31-203. Modification of agreement.
(a) By mutual consent, the parents of a child
may modify an agreement regarding custodial responsibility made pursuant to
this article.
(b) If an agreement is modified under
subsection (a) of this section before deployment of a deploying parent, the
modification shall be in writing and signed by both parents and any nonparent
who will exercise custodial responsibility under the modified agreement.
(c) If an agreement is modified under
subsection (a) of this section during deployment of a deploying parent, the
modification shall be agreed to in a record by both parents and any nonparent
who will exercise custodial responsibility under the modified agreement.
?48-31-204. Power of attorney.
A deploying parent, by power of attorney, may
delegate all or part of custodial responsibility to an adult nonparent for the
period of deployment if no other parent possesses custodial responsibility
under law of this state other than this article, or if a court order currently
in effect prohibits contact between the child and the other parent. The
deploying parent may revoke the power of attorney by signing a revocation of
the power.
?48-31-205. Filing agreement or power of
attorney with court.
An agreement or power of attorney under this
article shall be filed within a reasonable time with any court that has entered
an order on custodial responsibility or child support that is in effect
concerning the child who is the subject of the agreement or power. The case
number and heading of the pending case concerning custodial responsibility or
child support shall be provided to the court with the agreement or power.
?48-31-301. Proceeding for temporary custody
order.
(a) After a deploying parent receives notice
of deployment and until the deployment terminates, a court may issue a
temporary order granting custodial responsibility unless prohibited by the
Service Members Civil Relief Act, 50 U.S.C. ?3931 and ?3932. A court may not
issue a permanent order granting custodial responsibility without the consent
of the deploying parent.
(b) At any time after a deploying parent
receives notice of deployment, either parent may file a motion regarding
custodial responsibility of a child during deployment. The motion shall be filed
in a pending proceeding for custodial responsibility in a court with
jurisdiction under section one hundred four of this article or, if there is no
pending proceeding in a court with jurisdiction under section one hundred four
of this article, in a new action for granting custodial responsibility during
deployment.
?48-31-302. Expedited hearing.
If a motion to grant custodial responsibility
is filed under subsection (b) of section three hundred one of this article
before a deploying parent deploys, the court shall conduct an expedited
hearing.
?48-31-303. Testimony by electronic means.
In a proceeding under this article, a party or
witness who is not reasonably available to appear personally may appear,
provide testimony and present evidence by electronic means unless the court
finds good cause to require a personal appearance.
?48-31-304. Effect of prior judicial order or
agreement.
In a proceeding for a grant of custodial
responsibility pursuant to this article, the following rules apply:
(1) A prior judicial order, designating
custodial responsibility if there is deployment, is binding on the court unless
the circumstances meet the requirements of law of this state other than this
article for modifying a judicial order regarding custodial responsibility.
(2) The court shall enforce a prior written
agreement between the parents for designating custodial responsibility if there
is deployment, including an agreement executed under section two hundred one of
this article, unless the court finds that the agreement is contrary to the best
interest of the child.
?48-31-305. Grant of caretaking or
decision-making authority to nonparent.
(a) On motion of a deploying parent and in
accordance with law of this state other than this article, if it is in the best
interest of the child, a court may grant caretaking authority to a nonparent
who is an adult family member of the child or an adult with whom the child has
a close and substantial relationship.
(b) Unless a grant of caretaking authority to
a nonparent under subsection (a) of this section is agreed to by the other
parent, the grant is limited to an amount of time not greater than:
(1) The amount of time granted to the
deploying parent under a permanent custody order, but the court may add unusual
travel time necessary to transport the child; or
(2) In the absence of a permanent custody
order that is currently in effect, the amount of time that the deploying parent
habitually cared for the child before being notified of deployment, but the
court may add unusual travel time necessary to transport the child.
(c) A court may grant part of a deploying
parent?s decision-making authority, if the deploying parent is unable to
exercise that authority, to a nonparent who is an adult family member of the
child or an adult with whom the child has a close and substantial relationship.
If a court grants the authority to a nonparent, the court shall specify the
decision-making powers granted, including decisions regarding the child?s
education, religious training, health care, extracurricular activities and
travel.
?48-31-306. Grant of limited contact.
On motion of a deploying parent, and in
accordance with law of this state other than this article, unless the court
finds that the contact would be contrary to the best interest of the child, a
court shall grant limited contact to a nonparent who is a family member of the
child or an individual with whom the child has a close and substantial
relationship.
?48-31-307. Nature of authority created by
temporary custody order.
(a) A grant of authority under this article is
temporary and terminates under the provisions of this article after the return
from deployment of the deploying parent, unless the grant has been terminated
before that time by court order. The grant does not create an independent,
continuing right to caretaking authority, decision-making authority or limited
contact in an individual to whom it is granted.
(b) A nonparent granted caretaking authority,
decision-making authority or limited contact under this article may enforce the
grant until it is terminated by court order or under other provisions of this
article.
?48-31-308. Content of temporary custody
order.
(a) An order granting custodial responsibility
under this article shall:
(1) Designate the order as temporary; and
(2) Identify to the extent feasible the
destination, duration and conditions of the deployment.
(b) If applicable, an order for custodial
responsibility under this article shall:
(1) Specify the allocation of caretaking
authority, decision-making authority or limited contact among the deploying
parent, the other parent, and any nonparent;
(2) If the order divides caretaking or
decision-making authority between individuals, or grants caretaking authority
to one individual and limited contact to another, provide a process to resolve
any dispute that may arise;
(3) Provide for liberal communication between
the deploying parent and the child during deployment, including through
electronic means, unless contrary to the best interest of the child, and
allocate any costs of communications;
?(4)
Provide for liberal contact between the deploying parent and the child during
the time the deploying parent is on leave or otherwise available, unless
contrary to the best interest of the child;
(5) Provide for reasonable contact between the
deploying parent and the child after return from deployment until the temporary
order is terminated, even if the time of contact exceeds the time the deploying
parent spent with the child before entry of the temporary order; and
(6) Provide that the order will terminate
pursuant to the provisions of this article after the deploying parent returns
from deployment.
?48-31-309. Order for child support.
If a court has issued an order granting
caretaking authority under this article, or an agreement granting caretaking
authority has been executed under section two hundred one of this article, the
court may enter a temporary order for child support consistent with law of this
state other than this article if the court has jurisdiction under the Uniform
Interstate Family Support Act.
?48-31-310. Modifying or terminating grant of
custodial responsibility to nonparent.
(a) Except for an order under section three
hundred four of this article, except as otherwise provided in subsection (b) of
this section, and consistent with the Service Members Civil Relief Act, 50
U.S.C. ?3931 and ?3932, on motion of a deploying or other parent or any
nonparent to whom caretaking authority, decision-making authority, or limited
contact has been granted, the court may modify or terminate the grant if the
modification or termination is consistent with this article and it is in the
best interest of the child. A modification is temporary and terminates pursuant
to the provisions of this article after the deploying parent returns from
deployment, unless the grant has been terminated before that time by court
order.
(b) On motion of a deploying parent, the court
shall terminate a grant of limited contact.
?48-31-401. Procedure for terminating
temporary grant of custodial responsibility established by agreement.
(a) At any time after return from deployment,
a temporary agreement granting custodial responsibility under section two
hundred one of this article may be terminated by an agreement to terminate
signed by the deploying parent and the other parent.
(b) A temporary agreement under section two
hundred one of this article granting custodial responsibility terminates:
(1) If an agreement to terminate under
subsection (a) of this section specifies a date for termination, on that date;
or
(2) If the agreement to terminate does not
specify a date, on the date the agreement to terminate is signed by the
deploying parent and the other parent.
(c) In the absence of an agreement under
subsection (a) of this section to terminate, a temporary agreement granting
custodial responsibility terminates under this article sixty days after the
deploying parent gives notice to the other parent that the deploying parent
returned from deployment.
(d) If a temporary agreement granting
custodial responsibility was filed with a court pursuant to section two hundred
five of this article, an agreement to terminate the temporary agreement also
shall be filed with that court within a reasonable time after the signing of
the agreement. The case number and heading of the case concerning custodial
responsibility or child support shall be provided to the court with the
agreement to terminate.
?48-31-402. Consent procedure for terminating
temporary grant of custodial responsibility established by court order.
At any time after a deploying parent returns
from deployment, the deploying parent and the other parent may file with the
court an agreement to terminate a temporary order for custodial responsibility.
After an agreement has been filed, the court shall issue an order terminating
the temporary order effective on the date specified in the agreement. If a date
is not specified, the order is effective immediately.
?48-31-403. Visitation before termination of
temporary grant of custodial responsibility.
After a deploying parent returns from
deployment until a temporary agreement or order for custodial responsibility
established under this article is terminated, the court shall issue a temporary
order granting the deploying parent reasonable contact with the child unless it
is contrary to the best interest of the child, even if the time of contact
exceeds the time the deploying parent spent with the child before deployment.
?48-31-404. Termination by operation of law of
temporary grant of custodial responsibility established by court order.
(a) If an agreement between the parties to
terminate a temporary order for custodial responsibility under this article has
not been filed, the order terminates sixty days after the deploying parent
gives notice to the other parent and any nonparent granted custodial
responsibility that the deploying parent has returned from deployment.
(b) A proceeding seeking to prevent
termination of a temporary order for custodial responsibility is governed by
law of this state other than this article; Provided,
That no agreement of the parties made pursuant to the provisions of this
article shall be the basis for a modification of the parents? permanent
parenting plan made pursuant to section four hundred two, article nine of this
chapter.
?48-31-501. Uniformity of application and
construction.
In applying and construing this uniform act,
consideration shall be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
?48-31-502. Relation to Electronic Signatures
in Global and National Commerce Act.
This article modifies, limits, or supersedes
the Electronic Signatures in Global and National Commerce Act, 15 U.S.C.
section 7001 et seq., but does not
modify, limit, or supersede section 101(c) of that Act, 15 U.S.C. section
7001(c), or authorize electronic delivery of any of the notices described in
section 103(b) of that Act, 15 U.S.C. Section 7003(b).
?48-31-503. Savings clause.
This article does not affect the validity of a
temporary court order concerning custodial responsibility during deployment
which was entered before the effective date of this article.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2479 ?-
?A Bill to repeal ?48-1-233.3, ?48-1-233.4 and ?48-9-404 of the Code of
West Virginia, 1931, as amended; and to amend said code by adding thereto a new
article, designated ?48-31-101, ?48-31-102, ?48-31-103, ?48-31-104, ?48-31-105,
?48-31-106, ?48-31-107, ?48-31-201, ?48-31-202, ?48-31-203, ?48-31-204,
?48-31-205, ?48-31-301, ?48-31-302, ?48-31-303, ?48-31-304, ?48-31-305,
?48-31-306, ?48-31-307, ?48-31-308, ?48-31-309, ?48-31-310, ?48-31-401,
?48-31-402, ?48-31-403, ?48-31-404, ?48-31-501, ?48-31-502 and ?48-31-503, all
relating to adoption of the Uniform Deployed Parents Custody and Visitation
Act; providing a short title; defining terms; providing for enforcement through
assessment of attorney fees and costs; defining jurisdiction; providing that
the residence of deploying parent is not changed by reason of deployment for
purposes of the Uniform Child Custody Jurisdiction and Enforcement Act;
providing for emergency jurisdiction; providing notification requirements;
providing notification requirements for change of address; establishing
procedures to determine matters of child custody and visitation when parents
are deployed in military or other national service; requiring notices from
deployed parent; providing for out-of-court agreements and establishing minimum
requirements therefor; providing that an agreement under this article is
temporary and terminates after the deploying parent returns from deployment,
unless terminated prior to by court order; a deploying parent, by power of
attorney, may delegate all or part of custodial responsibilities to an certain
persons under certain circumstances; providing that the power of attorney may
be revoked; prohibiting consideration of past or future deployments in
determining the best interest of the child; authorizing orders for payment of
child support during deployment; providing that a court may issue a temporary
order granting custodial responsibilities under certain circumstances;
providing that parents may file a motion regarding custodial responsibility of
a child during deployment; providing for expediting hearings; providing that
testimony and evidence may be accepted by electronic means; providing effect to
prior judicial orders or agreements; providing that a court may grant
caretaking authority to certain nonparent individuals; providing for a court?s
grant of limited contact upon motion of a deploying parent; providing
requirements for an order granting custodial responsibility; providing that the
court may enter a temporary order for child support under certain
circumstances; providing for modification and termination of orders and
agreements and the procedures thereof; providing that the court shall issue a
temporary order granting the deploying parent reasonable contact with the child
under certain circumstances; and giving guidance for interpretation and
construction in conjunction with other laws and orders.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 547),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Blair.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2479) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2526, Classifying additional drugs to
Schedules I, II, IV and V of controlled substances.
??????????? Delegate Cowles moved that the House of
Delegates concur in the following amendment of the bill by the Senate, with
further amendment:
On
page one, by striking out everything after the enacting section and inserting
in lieu thereof the following:
?ARTICLE 2. STANDARDS AND
SCHEDULES.
?60A-2-201. Authority of state Board of
Pharmacy; recommendations to Legislature.
(a) The state
Board of Pharmacy shall administer the provisions of this chapter. It shall
also, on the first day of each regular legislative session, recommend to the
Legislature which substances should be added to or deleted from the schedules
of controlled substances contained in this article or reschedule therein. The
state Board of Pharmacy shall also have the authority between regular
legislative sessions, on an emergency basis, to add to or delete from the
schedules of controlled substances contained in this article or reschedule such
substances based upon the recommendations and approval of the federal food,
drug and cosmetic agency, and shall report such actions on the first day of the
regular legislative session immediately following said actions.
In making any
such recommendation regarding a substance, the state Board of Pharmacy shall
consider the following factors:
(1) The actual or
relative potential for abuse;
(2) The
scientific evidence of its pharmacological effect, if known;
(3) The state of
current scientific knowledge regarding the substance;
(4) The history
and current pattern of abuse;
(5) The scope,
duration and significance of abuse;
(6) The potential
of the substance to produce psychic or physiological dependence liability; and
(7) Whether the
substance is an immediate precursor of a substance already controlled under
this article.
(b) After
considering the factors enumerated in subsection (a), the state Board of
Pharmacy shall make findings with respect to the substance under consideration.
If it finds that any substance not already controlled under any schedule has a
potential for abuse, it shall recommend to the Legislature that the substance
be added to the appropriate schedule. If it finds that any substance already
controlled under any schedule should be rescheduled or deleted, it shall so
recommend to the Legislature.
(c) If the state
Board of Pharmacy designates a substance as an immediate precursor, substances
which are precursors of the controlled precursor shall not be subject to
control solely because they are precursors of the controlled precursor.
(d) If any
substance is designated, rescheduled or deleted as a controlled substance under
federal laws and notice thereof is given to the state Board of Pharmacy, the
board shall recommend similar control of such substance to the Legislature,
specifically stating that such recommendation is based on federal action and
the reasons why the federal government deemed such action necessary and proper.
(e) The authority
vested in the board by subsection (a) of this section shall not extend to
distilled spirits, wine, malt beverages or tobacco as those terms are defined
or used in other chapters of this code nor to any nonnarcotic substance if such
substance may under the "Federal Food, Drug and Cosmetic Act" and the
law of this state lawfully be sold over the counter without a prescription.
(f)
Notwithstanding any provision of this chapter to the contrary, the sale,
wholesale, distribution or prescribing of a cannabidiol in a product approved
by the Food and Drug Administration is permitted and shall be placed on the
schedule as provided for by the Drug Enforcement Administration.
60A-2-204. Schedule I.
(a)
Schedule I shall consist of the drugs and other substances, by whatever official
name, common or usual name, chemical name, or brand name designated, listed in
this section.
(b)
Opiates. Unless specifically excepted or unless listed in another schedule, any
of the following opiates, including their isomers, esters, ethers, salts and salts
of isomers, esters and ethers, whenever the existence of such isomers, esters,
ethers and salts is possible within the specific chemical designation (for
purposes of subdivision (34) of this subsection only, the term isomer includes
the optical and geometric isomers):
(1) Acetyl-alpha-methylfentanyl
(N-[1-(1-methyl-2-phenethyl) -4-piperidinyl]--phenylacetamide);
(2)
Acetylmethadol;
(3)
Allylprodine;
(4) Alphacetylmethadol (except levoalphacetylmethadol also
known as levo-alpha-acetylmethadol, levomethadyl acetate, or LAAM);
(5)
Alphameprodine;
(6)
Alphamethadol;
(7)Alpha-methylfentanyl
(N-[1-(alpha-methyl-beta-phenyl) ethyl-4-piperidyl] propionanilide;
1-(1-methyl-2-phenylethyl)-4-(?
propanilido) piperidine);
(8) Alpha-methylthiofentanyl (N-[1-methyl-2-(2-thienyl) ethyl-
4-piperidinyl]--phenylpropanamide);
(9)
Benzethidine;
(10)
Betacetylmethadol;
(11) Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-phenethyl)-4-
piperidinyl]-N-phenylpropanamide);
(12)
Beta-hydroxy-3-methylfentanyl (other name: N-[1-(2-
hydroxy-2-phenethyl)-3-methyl-4-piperidinyl]-N-phenylpropanamide);
(13)
Betameprodine;
(14)
Betamethadol;
(15)
Betaprodine;
(16)
Clonitazene;
(17)
Dextromoramide;
(18)
Diampromide;
(19)
Diethylthiambutene;
(20)
Difenoxin;
(21)
Dimenoxadol;
(22)
Dimepheptanol;
(23)
Dimethylthiambutene;
(24)
Dioxaphetyl butyrate;
(25)
Dipipanone;
(26)
Ethylmethylthiambutene;
(27)
Etonitazene;
(28)
Etoxeridine;
(29)
Fentanyl analog or derivative, as that term is defined in article one of this
chapter: Provided, That fentanyl remains
a Schedule II substance, as set forth in section two hundred six of this
article;
(29) (30) Furethidine;
(30) (31)
Hydroxypethidine;
(31) (32) Ketobemidone;
(32) (33) Levomoramide;
(33) (34)
Levophenacylmorphan;
(34) (35)
3-Methylfentanyl (N-[3-methyl-1-(2-phenylethyl)-4-
piperidyl]-N-phenylpropanamide);
(35) (36) 3-methylthiofentanyl (N-[3-methyl-1-(2-thienyl) ethyl-4-
piperidinyl]--phenylpropanamide);
(36) (37) Morpheridine;
(37) (38) MPPP
(1-methyl-4-phenyl-4-propionoxypiperidine);
(38) (39)
Noracymethadol;
(39) (40)
Norlevorphanol;
(40) (41) Normethadone;
(41) (42) Norpipanone;
(42) (43) Para-fluorofentanyl (N-(4-fluorophenyl)-N-[1-(2-
phenethyl)-4-piperidinyl] propanamide);
(43) (44)
PEPAP(1-(-2-phenethyl)-4-phenyl-4-acetoxypiperidine);
(44) (45) Phenadoxone;
(45) (46) Phenampromide;
(46) (47) Phenomorphan;
(47) (48) Phenoperidine;
(48) (49) Piritramide;
(49) (50) Proheptazine;
(50) (51) Properidine;
(51) (52) Propiram;
(52) (53) Racemoramide;
(53) (54) Thiofentanyl
(N-phenyl-N-[1-(2-thienyl) ethyl-4- piperidinyl]-propanamide);
(54) (55) Tilidine;
(55) (56) Trimeperidine.
?(c) Opium derivatives. -- Unless
specifically excepted or unless listed in another schedule, any of the
following opium immediate derivatives, its salts, isomers and salts of isomers
whenever the existence of such salts, isomers and salts of isomers is possible
within the specific chemical designation:
(1)
Acetorphine;
(2)
Acetyldihydrocodeine;
(3)
Benzylmorphine;
(4)
Codeine methylbromide;
(5)
Codeine-N-Oxide;
(6)
Cyprenorphine;
(7)
Desomorphine;
(8)
Dihydromorphine;
(9)
Drotebanol;
(10)
Etorphine (except HCl Salt);
(11)
Heroin;
(12)
Hydromorphinol;
(13)
Methyldesorphine;
(14)
Methyldihydromorphine;
(15)
Morphine methylbromide;
(16)
Morphine methylsulfonate;
(17)
Morphine-N-Oxide;
(18)
Myrophine;
(19)
Nicocodeine;
(20)
Nicomorphine;
(21)
Normorphine;
(22)
Pholcodine;
(23)
Thebacon.
(d)
Hallucinogenic substances. -- Unless specifically excepted or unless
listed in another schedule, any material, compound, mixture or preparation,
which contains any quantity of the following hallucinogenic substances, or
which contains any of its salts, isomers and salts of isomers, whenever the
existence of such salts, isomers, and salts of isomers is possible within the
specific chemical designation (for purposes of this subsection only, the term "isomer"
includes the optical, position and geometric isomers):
(1)
Alpha-ethyltryptamine; some trade or other names: etryptamine; Monase; alpha-ethy-1H-indole-3-ethanamine;
3-(2- aminobutyl) indole; alpha-ET; and AET;
(2)
4-bromo-2, 5-dimethoxy-amphetamine; some trade or other names:
4-bromo-2,5-dimethoxy-alpha-methylphenethylamine; 4-bromo- 2,5-DMA;
(3)
4-Bromo-2,5-dimethoxyphenethylamine; some trade or other names:
2-(4-bromo-2,5-dimethoxyphenyl)-1-aminoethane; alpha- desmethyl DOB; 2C-B,
Nexus;
(4)(A)
N-(2-Methoxybenzyl)-4-bromo-2, 5-dimethoxyphenethylamine. The substance has the
acronym 25B-NBOMe.
(B)
2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl) ethanamine (25C-NBOMe).
(C)
2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl) ethanamine (25I-NBOMe)
(5)
2,5-dimethoxyamphetamine; some trade or other names:
2,5-dimethoxy-alpha-methylphenethylamine; 2,5-DMA;
(6)
2,5-dimethoxy-4-ethylamphet-amine; some trade or other names: DOET;
(7)
2,5-dimethoxy-4-(n)-propylthiophenethylamine (other name: 2C-T-7);
(8)
4-methoxyamphetamine; some trade or other names:
4-methoxy-alpha-methylphenethylamine; paramethoxyamphetamine; PMA;
(9)
5-methoxy-3, 4-methylenedioxy-amphetamine;
(10)
4-methyl-2,5-dimethoxy-amphetamine; some trade and other names:
4-methyl-2,5-dimethoxy-alpha-methylphenethylamine; "DOM"; and "STP";
(11)
3,4-methylenedioxy amphetamine;
(12)
3,4-methylenedioxymethamphetamine (MDMA);
(13)
3,4-methylenedioxy-N-ethylamphetamine (also known as ? ethyl-alpha-methyl-3,4
(methylenedioxy) phenethylamine, N-ethyl MDA, MDE, MDEA);
(14)
N-hydroxy-3,4-methylenedioxyamphetamine (also known as ? hydroxy-alpha-methyl-3,4
(methylenedioxy) phenethylamine, and ? hydroxy MDA);
(15)
3,4,5-trimethoxy amphetamine;
(15)
(16) 5-methoxy-N, N-dimethyltryptamine (5-MeO-DMT);
(17)
Alpha-methyltryptamine (other name: AMT);
(18)
Bufotenine; some trade and other names: 3-(beta-Dimethylaminoethyl)-5-hydroxyindole;3-(2-dimethylaminoethyl)
-5-indolol; N, N-dimethylserotonin; 5-hydroxy-N,N- dimethyltryptamine; mappine;
(19)
Diethyltryptamine; sometrade and other names: N, N-Diethyltryptamine; DET;
(20)
Dimethyltryptamine; some trade or other names: DMT;
(21)
5-Methoxy-N, N-diisopropyltryptamine (5-MeO-DIPT);
(22)
Ibogaine; some trade and other names: 7-Ethyl-6, 6 Beta, 7, 8, 9, 10, 12,
13-octahydro-2-methoxy-6, 9-methano-5H- pyrido [1?, 2?: 1, 2] azepino [5,4-b]
indole; Tabernanthe iboga;
(23)
Lysergic acid diethylamide;
(24)
Marijuana;
(25)
Mescaline;
(26)
Parahexyl-7374; some trade or other names: 3-Hexyl -1-hydroxy-7, 8, 9,
10-tetrahydro-6, 6, 9-trimethyl-6H-dibenzo [b,d] pyran; Synhexyl;
(27)
Peyote; meaning all parts of the plant presently classified botanically as
Lophophora williamsii Lemaire, whether growing or not, the seeds thereof, any
extract from any part of such plant, and every compound, manufacture, salts,
immediate derivative, mixture or preparation of such plant, its seeds or
extracts;
(28)
N-ethyl-3-piperidyl benzilate;
(29)
N-methyl-3-piperidyl benzilate;
(30)
Psilocybin;
(31)
Psilocyn;
(32)
Tetrahydrocannabinols; synthetic equivalents of the substances contained in the
plant, or in the resinous extractives of Cannabis, sp. and/or synthetic
substances, immediate derivatives and their isomers with similar chemical
structure and pharmacological activity such as the following:
delta-1
Cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6
Cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3,4
Cis or trans tetrahydrocannabinol, and its optical isomers;
(Since
nomenclature of these substances is not internationally standardized, compounds
of these structures, regardless of numerical designation of atomic positions
covered).
(33)
Ethylamine analog of phencyclidine; some trade or other names:
N-ethyl-1-phenylcyclohexylamine, (1-phenylcyclohexyl) ethylamine,
N-(1-phenylcyclohexyl) ethylamine, cyclohexamine, PCE;
(34)
Pyrrolidine analog of phencyclidine; some trade or other names:
1-(1-phenylcyclohexyl)-pyrrolidine, PCPy, PHP;
(35)
Thiophene analog of phencyclidine; some trade or other names:
1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2-thienylanalog of phencyclidine;
TPCP, TCP;
(36)
1[1-(2-thienyl)cyclohexyl]pyrroldine; some other names: TCPy.
(37)
4-methylmethcathinone (Mephedrone);
(38)
3,4-methylenedioxypyrovalerone (MDPV);
(39)
2-(2,5-Dimethoxy-4-ethylphenyl)ethanamine (2C-E);
(40)
2-(2,5-Dimethoxy-4-methylphenyl)ethanamine (2C-D)
(41)
2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine (2C-C)
(42)
2-(4-Iodo-2,5-dimethoxyphenyl)ethanamine (2C-I)
(43)
2-[4-(Ethylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-2)
(44)
2-[4-(Isopropylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-4)
(45)
2-(2,5-Dimethoxyphenyl)ethanamine (2C-H)
(46)
2-(2,5-Dimethoxy-4-nitro-phenyl) ethanamine (2C-N)
(47)
2-(2,5-Dimethoxy-
4-(n)-propylphenyl)ethanamine
(2C-P)
(48)
3,4-Methylenedioxy-N-methylcathinone (Methylone)
(49)
(2,5-dimethoxy-4-(n)-propyltghiophenethylamine (2C-T-7, itsoptical isomers,
salts and salts of isomers
(50)
5-methoxy-N, N-dimethyltryptamine some trade or other names:
5-methoxy-3-[2-(dimethylamino)ethyl]indole; 5-MeO-DMT(5-MeO-DMT)
(51)
Alpha-methyltryptamine (other name: AMT)
(52)
5-methoxy-N, N-diisopropyltryptamine (other name: 5-MeO-DIPT)
(53)
Synthetic Cannabinoids as follows:
(A)
2-[(1R,3S)-3-hydroxycyclohexyl]-5- (2-methyloctan-2-yl) phenol) {also known as
CP 47,497 and homologues};
(B)
rel-2-[(1S,3R)-3-hydroxycyclohexyl] -5-(2-methylnonan-2-yl) phenol {also known
as CP 47,497-C8 homolog};
(C)
[(6aR)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)-6a,
7,10,10a-tetrahydrobenzo[c]chromen-1-ol)] {also known as HU-210};
(D)
(dexanabinol);
(6aS,10aS)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo
l[c]chromen-1-ol)
{also known as HU-211};
(E)
1-Pentyl-3-(1-naphthoyl) indole {also known as JWH-018};
(F)
1-Butyl-3-(1-naphthoyl) indole {also known as JWH-073};
(G)
(2-methyl-1-propyl-1H-indol-3-yl)-1-napthalenyl-methanone {also known as
JWH-015};
(H)
(1-hexyl-1H-indol-3-yl)-1-naphthalenyl-methanone {also known as JWH-019};
(I)
[1-[2-(4-morpholinyl) ethyl] -1H-indol-3-yl]-1-naphthalenyl-methanone {also
known as JWH-200};
(J)
1-(1-pentyl-1H-indol-3-yl)-2-(3-hydroxyphenyl)-ethanone {also known as
JWH-250};
(K)
2-((1S,2S,5S)-5-hydroxy-2- (3-hydroxtpropyl)cyclohexyl)
-5-(2-methyloctan-2-yl)phenol {also known as CP 55,940};
(L)
(4-methyl-1-naphthalenyl) (1-pentyl-1H-indol-3-yl) -methanone {also known as
JWH-
122};
(M)
(4-methyl-1-naphthalenyl) (1-pentyl-1H-indol-3-yl) -methanone {also known as
JWH-
398;
(N)
(4-methoxyphenyl)(1-pentyl-1H-indol-3-yl)methanone {also known as RCS-4};
(O)
1-(1-(2-cyclohexylethyl) -1H-indol-3-yl) -2-(2-methoxyphenyl) ethanone {also
known as RCS-8};
(P)
1-pentyl-3-[1-(4-methoxynaphthoyl) indole (JWH-081);
(Q)
1-(5-fluoropentyl)-3-(1-naphthoyl) indole (AM2201); and
(R)
1-(5-fluoropentyl)-3-(2-iodobenzoyl) indole (AM694).
(54)
Synthetic cannabinoids or any material, compound, mixture or preparation which
contains any quantity of the following substances, including their analogues,
congeners, homologues, isomers, salts and salts of analogues, congeners,
homologues and isomers, as follows:
(A)
CP 47,497 AND homologues, 2-[(1R,3S)-3-Hydroxycyclohexyl]-5-(2-methyloctan-2-
YL)
phenol);
(B)
HU-210,
[(6AR,10AR)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-Methyloctan-2-YL)-6A,7,10,
10A-tetrahydrobenzo[C] chromen-1-OL)];
(C)
HU-211, (dexanabinol,
(6AS,10AS)-9-(hydroxymethyl)-6,6-Dimethyl-3-(2-methyloctan-2-YL)-6A,7,10,10atetrahydrobenzo
[ C] chromen-1-OL);
(D)
JWH-018, 1-pentyl-3-(1-naphthoyl) indole;
(E)
JWH-019, 1-hexyl-3-(1-naphthoyl) indole;
(F)
JWH-073, 1-butyl-3-(1-naphthoyl) indole;
(G)
JWH-200, (1-(2-morpholin-4-ylethyl) indol-3-yl)- Naphthalen-1-ylmethanone;
(H)
JWH-250, 1-pentyl-3-(2-methoxyphenylacetyl) indole.
(55)
Synthetic cannabinoids including any material, compound, mixture or preparation
that is not listed as a controlled substance in Schedule I through V, is not a
federal Food and Drug Administration approved drug or used within legitimate
and approved medical research and which contains any quantity of the following
substances, their salts, isomers, whether optical positional or geometric,
analogues, homologues and salts of isomers, analogues and homologues, unless
specifically exempted, whenever the existence of these salts, isomers,
analogues, homologues and salts of isomers, analogues and homologues if
possible within the specific chemical designation:
(A)
Tetrahydrocannabinols meaning tetrahydrocannabinols which are naturally
contained in a plant of the genus cannabis as well as synthetic equivalents of
the substances contained in the plant or in the resinous extractives of
cannabis or synthetic substances, derivatives and their isomers with analogous
chemical structure and or pharmacological activity such as the following:
(i)
DELTA-1 CIS OR trans tetrahydrocannabinol and their Optical isomers.
(ii)
DELTA-6 CIS OR trans tetrahydrocannabinol and their Optical isomers.
(iii)
DELTA-3,4 CIS OR their trans tetrahydrocannabinol and their optical isomers.
(B)
Naphthoyl indoles or any compound containing a 3-(-1- Napthoyl) indole
structure with substitution at the nitrogen atom of the indole ring whether or
not further substituted in the indole ring to any extent and whether or not
substituted in the naphthyl ring to any extent. This shall include the
following:
(i)
JWH 015;
(ii)
JWH 018;
(iii)
JWH 019;
(iv)
JWH 073;
(v)
JWH 081;
(vi)
JWH 122;
(vii)
JWH 200;
(viii)
JWH 210;
(ix)
JWH 398;
(x)
AM 2201;
(xi)
WIN 55,212.
(56)
Synthetic Phenethylamines (including their optical, positional, and geometric
isomers, salts and salts of isomers, whenever the existence of such salts,
isomers, and salts of isomers):
(A)
2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25I-NBOMe/
2C-I-NBOMe);
(B)
2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine
(25C-NBOMe/2C-C-NBOMe);
(C)
2-(4-bromo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25B-NBOMe/
2C-B-NBOMe);
(57)
Synthetic Opioids (icluding their isomers, esters, ethers, salts and salts of
isomers, esters and ethers):
(A)
N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide (acetyl fentanyl);
(B)
furanyl fentanyl;
(C)
3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide (also known as
U-47700);
(D)
N-(1-phenethylpiperidin-4-yl)-N-phenylbutyramide, also known as
N-(1-phenethylpiperidin-4-yl)-N-phenylbutanamide, (butyryl fentanyl);
(E)
N-[1-[2-hydroxy-2-(thiophen-2-yl)ethylpiperidin-4-yl]-N-phenylpropionamide,
also known as N-[1-[2-hydroxy-2-(2-thienyl)ethyl]-4-piperidinyl]-N-phenylpropanamide,
(beta-hydroxythiofentanyl).
(58)
Opioid Receptor Agonist (including its isomers, esters, ethers, salts, and
salts of isomers, esters and ethers):
(A)
AH-7921 (3,4-dichloro-N- (1dimethylamino)cyclohexylmethyl]benzamide).
(56) (59)
Naphylmethylindoles or any compound containing a 1hindol-3-yl-(1-naphthyl)
methane structure with a substitution at the nitrogen atom of the indole ring
whether or not further substituted in the indole ring to any extent and whether
or not substituted in the naphthyl ring to any extent. This shall include, but
not be limited to, JWH 175 and JWH 184.
(57) (60)
Naphthoylpyrroles or any compound containing a 3-(1- Naphthoyl) pyrrole
structure with substitution at the nitrogen atom of the pyrrole ring whether or
not further substituted in the pyrrole ring to any extent and whether or not
substituted in the naphthyl ring to any extent. This shall include, but not be
limited to, JWH 147 and JWH 307.
(58) (61)
Naphthylmethylindenes or any compound containing a Naphthylideneindene
structure with substitution at the 3- Position of the indene ring whether or
not further substituted in the indene ring to any extent and whether or not
substituted in the naphthyl ring to any extent. This shall include, but not be
limited to, JWH 176.
(59) (62)
Phenylacetylindoles or any compound containing a 3- Phenylacetylindole
structure with substitution at the nitrogen atom of the indole ring whether or
not further substituted in the indole ring to any extent and whether or not
substituted in the phenyl ring to any extent. This shall include the following:
(A)
RCS-8, SR-18 OR BTM-8;
(B)
JWH 250;
(C)
JWH 203;
(D)
JWH 251;
(E)
JWH 302.
(60) (63)
Cyclohexylphenols or any compound containing a 2-(3- hydroxycyclohexyl) phenol
structure with a substitution at the 5-position of the phenolic ring whether or
not substituted in the cyclohexyl ring to any extent. This shall include the
following:
(A)
CP 47,497 and its homologues and analogs;
(B)
Cannabicyclohexanol;
(C)
CP 55,940.
(61) (64) Benzoylindoles
or any compound containing a 3-(benzoyl) indole structure with substitution at
the nitrogren atom of the indole ring whether or not further substituted in the
indole ring to any extent and whether or not substituted in the phenyl ring to
any extent. This shall include the following:
(A)
AM 694;
(B)
Pravadoline WIN 48,098;
(C)
RCS 4;
(D)
AM 679.
(62) (65) [2,3-dihydro-5
methyl-3-(4-morpholinylmethyl)pyrrolo [1,2,3-DE]-1, 4-benzoxazin-6-YL]-1-napthalenymethanone.
This shall include WIN 55,212-2.
(63) (66) Dibenzopyrans
or any compound containing a 11-hydroxydelta 8-tetrahydrocannabinol structure
with substitution on the 3-pentyl group. This shall include HU-210, HU-211, JWH
051 and JWH 133.
(64) (67)
Adamantoylindoles or any compound containing a 3-(-1- Adamantoyl) indole
structure with substitution at the nitrogen atom of the indole ring whether or
not further substituted in the adamantoyl ring system to any extent. This shall
include AM1248.
(65) (68)
Tetramethylcyclopropylindoles or any compound containing A
3-tetramethylcyclopropylindole structure with substitution at the nitrogen atom
of the indole ring whether or not further substituted in the indole ring to any
extent and whether or not substituted in the tetramethylcyclopropyl ring to any
extent. This shall include UR-144 and XLR-11.
(66) (69)
N-(1-Adamantyl)-1-pentyl-1h-indazole-3-carboxamide. This shall include AKB48.
(67) (70) Any other
synthetic chemical compound that is a Cannabinoid receptor type 1 agonist as
demonstrated by binding studies and functional assays that is not listed in
Schedules II, III, IV and V, not federal Food and Drug Administration approved
drug or used within legitimate, approved medical research. Since nomenclature
of these substances is not internationally standardized, any immediate
precursor or immediate derivative of these substances shall be covered.
(68) (71) Tryptamines:
(A)
5- methoxy- N- methyl-N-isopropyltryptamine (5-MeO-MiPT)
(B)
4-hydroxy-N, N-diisopropyltryptamine (4-HO-DiPT)
(C)
4-hydroxy-N-methyl-N-isopropyltryptamine (4-HO-MiPT)
(D)
4-hydroxy-N-methyl-N-ethyltryptamine (4-HO-MET)
(E)
4-acetoxy-N, N-diisopropyltryptamine (4-AcO-DiPT)
(F)
5-methoxy-α-methyltryptamine (5-MeO-AMT)
(G)
4-methoxy-N, N-Dimethyltryptamine (4-MeO-DMT)
(H)
4-hydroxy Diethyltryptamine (4-HO-DET)
(I)
5- methoxy- N, N- diallyltryptamine (5-MeO-DALT)
(J)
4-acetoxy-N, N-Dimethyltryptamine (4-AcO DMT)
(K)
4-hydroxy Diethyltryptamine (4-HO-DET)
(72)????? N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide
(AB-CHMINACA);
(73)
N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide
(AB-PINACA);
(74)
[1-(5-fluoropentyl)-1H-indazol-3-yl (naphthalen-1-yl)methanone (THJ-2201);
(75)
quinolin-8-yl 1-pentyl-1H-indole-3-carboxylate (PB-22; QUPIC);
(76)
quinolin-8-yl 1-(5-fluoropentyl)-1H-indole-3-carboxylate (5-fluoro-PB-22;
5F-PB-22);
(77)????? N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide
(AB-FUBINACA);
(78)????? N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide
(ADB-PINACA); and
(79)????? N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide
(common names, MAB-CHMINACA and ADB-CHMINACA);
?(e) Depressants. -- Unless specifically
excepted or unless listed in another schedule, any material, compound, mixture,
or preparation which contains any quantity of the following substances having a
depressant effect on the central nervous system, including its salts, isomers
and salts of isomers whenever the existence of such salts, isomers and salts of
isomers is possible within the specific chemical designation:
(1)
Mecloqualone;
(2)
Methaqualone.
(f)
Stimulants. -- Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture, or preparation which contains any
quantity of the following substances having a stimulant effect on the central
nervous system, including its salts, isomers and salts of isomers:
(1)
Aminorex; some other names: aminoxaphen; 2-amino-5- phenyl-2-oxazoline; or
4,5-dihydro-5-phenyl-2-oxazolamine;
(2)
Cathinone; some trade or other names: 2-amino-1-phenyl-1- propanone,
alpha-aminopropiophenone, 2-aminopropiophenone and norephedrone;
(3)
Fenethylline;
(4)
Methcathinone, its immediate precursors and immediate derivatives, its salts,
optical isomers and salts of optical isomers; some other names:
(2-(methylamino)-propiophenone; alpha-
(methylamino)propiophenone;
2-(methylamino)-1-phenylpropan-1- one; alpha---methylaminopropiophenone;
monomethylpropion; 3,4-methylenedioxypyrovalerone and/or
mephedrone;3,4-methylenedioxypyrovalerone (MPVD); ephedrone; N-methylcathinone;
methylcathinone; AL-464; AL-422; AL- 463 and UR1432;
(5)
(+-) cis-4-methylaminorex; ((+-) cis-4,5-dihydro-4-methyl- 5-phenyl-2-oxazolamine);
(6)
N-ethylamphetamine;
(7)
N,N-dimethylamphetemine; also known as N,N-alpha- trimethyl-benzeneethanamine;
N,N-alpha-trimethylphenethylamine.
(8)
Alpha-pyrrolidinopentiophenone, also known as alpha-PVP, optical isomers, salts
and salts of isomers.
(9)
Substituted amphetamines:
(A)
2-Fluoroamphetamine
(B)
3-Fluoroamphetamine
(C)
4-Fluoroamphetamine
(D)
2-chloroamphetamine
(E)
3-chloroamphetamine
(F)
4-chloroamphetamine
(G)
2-Fluoromethamphetamine
(H)
3-Fluoromethamphetamine
(I)
4-Fluoromethamphetamine
(J)
4-chloromethamphetamine
(10)
4-methyl-N-ethylcathinone (4-MEC);
(11)
4-methyl-alpha-pyrrolidinopropiophenone (4-MePPP);
(12)
1-(1,3-benzodioxol-5-yl)-2-(methylamino)butan-1-one (butylone);
(13)
2-(methylamino)-1-phenylpentan-1-one (pentedrone);
(14)
1-(1,3-benzodioxol-5-yl)-2-(methylamino)pentan-1-one (pentylone);
(15)
4-fluoro-N-methylcathinone (4-FMC);
(16)
3-fluoro-N-methylcathinone (3-FMC);
(17)
1-(naphthalen-2-yl)-2-(pyrrolidin-1-yl)pentan-1-one (naphyrone); and
(18)
Alpha-pyrrolidinobutiophenone (α-PBP).
(g)
Temporary listing of substances subject to emergency scheduling. Any material,
compound, mixture or preparation which contains any quantity of the following
substances:
(1)
N-[1-benzyl-4-piperidyl]-N-phenylpropanamide (benzylfentanyl), its optical
isomers, salts, and salts of isomers.
(2)
N-[1-(2-thienyl) methyl-4-piperidyl]-N-phenylpropanamide (thenylfentanyl), its
optical isomers, salts and salts of isomers.
(3)
N-benzylpiperazine, also known as BZP.
(h)
The following controlled substances are included in Schedule I:
(1)
Synthetic Cathinones or any compound, except bupropion or compounds listed
under a different schedule, or compounds used within legitimate and approved
medical research, structurally derived from 2- Aminopropan-1-one by
substitution at the 1-position with Monocyclic or fused polycyclic ring
systems, whether or not the compound is further modified in any of the
following ways:
(A)
By substitution in the ring system to any extent with Alkyl, alkylenedioxy, alkoxy,
haloalkyl, hydroxyl or halide Substituents whether or not further substituted
in the ring system by one or more other univalent substituents.
(B)
By substitution at the 3-Position with an acyclic alkyl substituent.
(C)
By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl or
methoxybenzyl groups.
(D)
By inclusion of the 2-amino nitrogen atom in a cyclic structure.
(2)
Any other synthetic chemical compound that is a Cannabinoid receptor type 1
agonist as demonstrated by binding studies and functional assays that is not
listed in Schedules II, III, IV and V, not federal Food and Drug Administration
approved drug or used within legitimate, approved medical research.
?60A-2-206. Schedule II.
(a)
Schedule II consists of the drugs and other substances, by whatever official
name, common or usual name, chemical name or brand name designated, listed in
this section.
(b)
Substances, vegetable origin or chemical synthesis. -- Unless
specifically excepted or unless listed in another schedule, any of the
following substances whether produced directly or indirectly by extraction from
substances of vegetable origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical synthesis:
(1)
Opium and opiate, and any salt, compound, derivative or preparation of opium or
opiate excluding apomorphine, thebaine-derived butorphanol, dextrorphan,
nalbuphine, nalmefene, naloxone and naltrexone, and their respective salts, but
including the following:
(A)
Raw opium;
(B)
Opium extracts;
(C)
Opium fluid;
(D)
Powdered opium;
(E)
Granulated opium;
(F)
Tincture of opium;
(G)
Codeine;
(H)
Dihydroetorphine;
(I)
Ethylmorphine;
(J)
Etorphine hydrochloride;
(K)
Hydrocodone;
(L)
Hydromorphone;
(M)
Metopon;
(N)
Morphine;
(O)
Oripavine;
(P)
Oxycodone;
(Q)
Oxymorphone; and
(R)
Thebaine;
(2)
Any salt, compound, derivative or preparation thereof which is chemically
equivalent or identical with any of the substances referred to in subdivision
(1) of this subsection, except that these substances shall not include the
isoquinoline alkaloids of opium;
(3)
Opium poppy and poppy straw;
(4)
Coca leaves and any salt, compound, derivative or preparation of coca leaves
(including cocaine and ecgonine and their salts, isomers, derivatives and salts
of isomers and derivatives), and any salt, compound, derivative or preparation
thereof which is chemically equivalent or identical with any of these
substances, except that the substances shall not include decocainized coca
leaves or extractions of coca leaves, which extractions do not contain cocaine
or ecgonine;
(5)
Concentrate of poppy straw (the crude extract of poppy straw in either liquid,
solid or powder form which contains the phenanthrene alkaloids of the opium
poppy).
(c)
Opiates. -- Unless specifically excepted or unless in another schedule,
any of the following opiates, including its isomers, esters, ethers, salts and
salts of isomers, esters and ethers whenever the existence of such isomers,
esters, ethers and salts is possible within the specific chemical designation,
dextrorphan and levopropoxyphene excepted:
(1)
Alfentanil;
(2)
Alphaprodine;
(3)
Anileridine;
(4)
Bezitramide;
(5)
Bulk dextropropoxyphene (nondosage forms);
(6)
Carfentanil;
(7)
Dihydrocodeine;
(8)
Diphenoxylate;
(9)
Fentanyl;
(10)
Isomethadone;
(11)
Levo-alphacetylmethadol; some other names: levo-alpha-acetylmethadol,
levomethadyl acetate, LAAM;
(12)
Levomethorphan;
(13)
Levorphanol;
(14)
Metazocine;
(15)
Methadone;
(16)
Methadone-Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane;
(17)
Moramide-Intermediate, 2-methyl-3-morpholino-1,
1-diphenylpropane-carboxylic
acid;
(18)
Pethidine; (meperidine);
(19)
Pethidine-Intermediate-A, 4-cyano-1-methyl-4- phenylpiperidine;
(20)
Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate;
(21)
Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid;
(22)
Phenazocine;
(23)
Piminodine;
(24)
Racemethorphan;
(25)
Racemorphan;
(26)
Remifentanil;
(27)
Sufentanil; and
(28)
Tapentadol and
(29)
Thiafentanil (4-(methoxycarbonyl)-4-(N-phenmethoxyacetamido)-1-2-(thienyl)ethylpiperidine),
including its isomers, esters, ethers, salts and salts of isomers, esters and
ethers.
(d)
Stimulants. -- Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture or preparation which contains any
quantity of the following substances having a stimulant effect on the central
nervous system:
(1)
Amphetamine, its salts, optical isomers and salts of its optical isomers;
(2)
Methamphetamine, its salts, isomers and salts of its isomers;
(3)
Methylphenidate;
(4)
Phenmetrazine and its salts; and
(5)
Lisdexamfetamine.
(e)
Depressants. -- Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture or preparation which contains any
quantity of the following substances having a depressant effect on the central
nervous system, including its salts, isomers and salts of isomers whenever the
existence of such salts, isomers and salts of isomers is possible within the
specific chemical designation:
(1)
Amobarbital;
(2)
Glutethimide;
(3)
Pentobarbital;
(4)
Phencyclidine;
(5)
Secobarbital.
(f)
Hallucinogenic substances:
Nabilone:
[Another name for nabilone: (+-)-trans-3-(1, 1-dimethylheptyl)-6, 6a, 7, 8, 10,
10a-hexahydro-1-hydroxy-6, 6-dimethyl-9H-dibenzo [b,d] pyran-9-one].
(g)
Immediate precursors. -- Unless specifically excepted or unless listed
in another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances:
(1)
Immediate precursor to amphetamine and methamphetamine:
(A)
Phenylacetone;
(B)
Some trade or other names: phenyl-2-propanone; P2P; benzyl methyl ketone;
methyl benzyl ketone;
(2)
Immediate precursors to phencyclidine (PCP):
(A)
1-phenylcyclohexylamine; and
(B)
1-piperidinocyclohexanecarbonitrile (PCC).
(3)
Immediate precursor to fentanyl:
4-anilino-N-phenethyl-4-piperidine
(ANPP).
?60A-2-210. Schedule IV.
(a)
Schedule IV shall consist of the drugs and other substances, by whatever
official name, common or usual name, chemical name, or brand name designated,
listed in this section.
(b)
Narcotic drugs. -- Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture or preparation containing any
of the following narcotic drugs, or their salts calculated as the free
anhydrous base or alkaloid, in limited quantities as set forth below:
(1)
Not more than 1 milligram of difenoxin and not less than 25 micrograms of
atropine sulfate per dosage unit;
(2)
Dextropropoxyphene (alpha-(+)-4-dimethylamino-1,2-diphenyl-3-methyl-2-propionoxybutane).
(c)
Depressants. -- Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture or preparation which contains any
quantity of the following substances, including its salts, isomers and salts of
isomers whenever the existence of such salts, isomers and salts of isomers is
possible within the specific chemical designation:
(1)
Alprazolam;
(2)
Barbital;
(3)
Bromazepam;
(4)
Camazepam;
(5)
Carisoprodol;
(6)
Chloral betaine;
(7)
Chloral hydrate;
(8)
Chlordiazepoxide;
(9)
Clobazam;
(10)
Clonazepam;
(11)
Clorazepate;
(12)
Clotiazepam;
(13)
Cloxazolam;
(14)
Delorazepam;
(15)
Diazepam;
(16)
Dichloralphenazone;
(17)
Estazolam;
(18)
Ethchlorvynol;
(19)
Ethinamate;
(20)
Ethyl loflazepate;
(21)
Fludiazepam;
(22) Flunitrazepam;???????????????????????????????????????
(23)
Flurazepam;
(24)
Fospropofol;
(25)
Halazepam;
(26)
Haloxazolam;
(27)
Ketazolam;
(28)
Loprazolam;
(29)
Lorazepam;
(30)
Lormetazepam;
(31)
Mebutamate;
(32)
Medazepam;
(33)
Meprobamate;
(34)
Methohexital;
(35)
Methylphenobarbital (mephobarbital);
(36)
Midazolam;
(37)
Nimetazepam;
(38)
Nitrazepam;
(39)
Nordiazepam;
(40)
Oxazepam;
(41)
Oxazolam;
(42)
Paraldehyde;
(43)
Petrichloral;
(44)
Phenobarbital;
(45)
Pinazepam;
(46)
Prazepam;
(47)
Quazepam;
(48)
Temazepam;
(49)
Tetrazepam;
(50)
Triazolam;
(51)
Zaleplon;
(52)
Zolpidem;
(53)
Zopiclone?
(54)
Suvorexant ([(7R)-4-(5-chloro-1,3-benzoxazol-2-yl)-7-methyl-1,4-diazepan-1-yl]
[5-methyl-2-(2H-1,2,3-triazol-2-yl)phenyl]methanone).
(d)
Any material, compound, mixture or preparation which contains any quantity of
the following substance, including its salts, isomers (whether optical,
position or geometric) and salts of such isomers whenever the existence of such
salts, isomers and salts of isomers is possible: Fenfluramine and
Dexfenfluramine.
(e)
Stimulants. -- Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture or preparation which contains any
quantity of the following substances having a stimulant effect on the central
nervous system, including its salts, isomers and salts of isomers:
(1)
Cathine ((+)-norpseudoephedrine);
(2)
Diethylpropion;
(3)
Fencamfamin;
(4)
Fenproporex;
(5)
Mazindol;
(6)
Mefenorex;
(7)
Modafinil;
(8)
Pemoline (including organometallic complexes and chelates thereof);
(9)
Phentermine;
(10)
Pipradrol;
(11)
Sibutramine;
(12)
SPA ((-)-1-dimethylamino-1,2-diphenylethane);
(13)
Eluxadoline
(5-[[[(2S)-2-amino-3-[4-aminocarbonyl)-2,6-dimethylphenyl]-1-oxopropyl
[(1S)-1-(4-phenyl-1H-imidazol-2-yl)ethyl]amino]methyl]-2-methoxybenzoic acid);
(f)
Other substances. -- Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture or preparation which contains
any quantity of the following substances, including its salts:
(1)
Pentazocine;
(2)
Butorphanol;
(3)
tramadol hydrochloride. Tramadol
(2-[(dimethylamino)methyl]-1-(3-methoxyphenyl) cyclohexanol).
Amyl
nitrite, butyl nitrite, isobutyl nitrite and the other organic nitrites are
controlled substances and no product containing these compounds as a
significant component shall be possessed, bought or sold other than pursuant to
a bona fide prescription or for industrial or manufacturing purposes.
?60A-2-212. Schedule V.
(a)
Schedule V shall consist of the drugs and other substances, by whatever
official name, common or usual name, chemical name, or brand name designated,
listed in this section.
(b)
Narcotic drugs containing nonnarcotic active medicinal ingredients. Any
compound, mixture or preparation containing any of the following narcotic drugs
or their salts calculated as the free anhydrous base or alkaloid in limited
quantities as set forth below, which shall include one or more nonnarcotic
active medicinal ingredients in sufficient proportion to confer upon the
compound, mixture or preparation valuable medicinal qualities other than those
possessed by the narcotic drug alone:
(1)
Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams;
(2)
Not more than 100 milligrams of dihydrocodeine per 100 milliliters or per 100
grams;
(3)
Not more than 100 milligrams of ethylmorphine per 100 milliliters or per 100
grams;
(4)
Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms
of atropine sulfate per dosage unit;
(5)
Not more than 100 milligrams of opium per 100 milliliters or per 100 grams;
(6)
Not more than 0.5 milligrams of difenoxin and not less than 25 micrograms of
atropine sulfate per dosage unit.
(c)
Stimulants.
-- Unless specifically exempted or excluded or unless listed in another
schedule, any material, compound, mixture or preparation which contains any
quantity of the following substances having a stimulant effect on the central
nervous system, including its salts, isomers and salts of isomers:
(1)
Pyrovalerone.
(d)
Any compound, mixture or preparation containing as its single active ingredient
ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical
isomers, or salts of optical isomers except products which are for pediatric
use primarily intended for administration to children under the age of twelve: Provided,
That neither the offenses set forth in section four hundred one, article four
of this chapter, nor the penalties therein, shall be applicable to ephedrine,
pseudoephedrine or phenylpropanolamine which shall be subject to the provisions
of article ten of this chapter.
(e)
Depressants. -- Unless specifically exempted or excluded or unless
listed in another schedule, any material, compound, mixture or preparation
which contains any quantity of the following substances having a depressant
effect on the central nervous system, including its salts:
(1)
Ezogabine [N-[2-amino-4-94-fluorobenzylamino)-phenyl]-carbamic acid ethyl
ester];
(2)
Lacosamide [(R)-2-acetoamido- N -benzyl-3-methoxy-propionamide];
(3)
Pregabalin [(S)-3-(aminomethyl)-5-methylhexanoic acid]; and
(4)
Brivaracetam ((2S)-2-[(4R)-2-oxo-4-propylpyrrolidin-1-yl] butanamide) (also
referred to as BRV; UCB-34714; Briviact), including its salts.?
??????????? Delegate Cowles moved to amend the
amendment of the Senate, on page four, by removing the following language:
??????????? ??(29) Fentanyl analog or derivative, as that
term is defined in article one of this chapter: Provided, That fentanyl remains a Schedule II substance, as set
forth in section two hundred six of this article? and the semicolon.
??????????? And then renumbering the
subdivisions accordingly.?
??????????? The motion to concur in the
amendment of the bill by the Senate, with further amendment by the House, was
adopted.
??????????? The
bill, as amended by the Senate and further amended by the House, was then put
upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 548),
and there were--yeas 94, nays 5, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Eldridge, Fluharty, McGeehan,
Pushkin and Rowe.
??????????? Absent and Not Voting: Blair.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2526) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to recede from its amendment and requested the
House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
??????????? Com.
Sub. for H. B. 2589,
Permitting students who are homeschooled or attend private schools to enroll
and take classes at the county?s vocational school.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Gaunch, Mann and Romano.
??????????? On motion of Delegate Cowles, the
House of Delegates agreed to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses.
??????????? Whereupon,
??????????? The Speaker appointed as conferees
on the part of the House of Delegates the following:
??????????? Delegates Blair, Upson and
Rodighiero.
??????????? Ordered, That the Clerk of the House communicate to the
Senate the action of the House of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to recede from its amendment and requested the
House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
??????????? Com.
Sub. for H. B. 2631,
Relating to time standards for disposition of complaint proceedings.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Takubo, Maroney and
Palumbo.
??????????? On motion of Delegate Cowles, the
House of Delegates agreed to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses.
??????????? Whereupon,
??????????? The Speaker appointed as conferees
on the part of the House of Delegates the following:
??????????? Delegates Hanshaw, Capito and R.
Miller.
??????????? Ordered, That the Clerk of the House communicate to the
Senate the action of the House of Delegates.
Conference Committee Report Availability
??????????? At 5:24 p.m., the Clerk announced
availability in his office of the report of the Committee of Conference on Com.
Sub. for H. B. 2722, Eliminating the financial limitations on utilizing the
design-build program for highway construction.
??????????? At 5:25 p.m., the Clerk announced
availability in his office of the report of the Committee of Conference on Com.
Sub. for H. B. 2721, Removing the cost limitation on projects completed by the
Division of Highways.
At 5:26 p.m.,
on motion of Delegate Cowles, the House of Delegates recessed until 5:45 p.m.
* * * * * * *
Evening Session
* * * * * * *
The House of Delegates was called to
order by the Honorable Tim Armstead, Speaker.
Conference Committee Report Availability
??????????? At 6:19 p.m., the Clerk announced
availability in his office of the reports of the Committees of Conference on Com.
Sub. for S. B. 204, Requiring persons appointed to fill vacancy by Governor
have same qualifications for vacated office and receive same compensation and
expenses, and S. B. 554, Relating to false swearing in legislative proceeding.
Messages from the Senate
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2804,
Removing chiropractors from the list of medical professions required to obtain
continuing education on mental health conditions common to veterans and family
members.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
??????????? On page
??????????? On page one, section seven-a, line
fifteen, after the word ?licensed?, by inserting the words ?or certified as an
osteopathic?.
??????????? And,
??????????? On page one, section seven-a, line
fifteen, after the word ?as? by striking out the word ?a?.
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 549),
and there were--yeas 93, nays 3, absent and not voting 4, with the nays and
absent and not voting being as follows:
??????????? Nays: Fleischauer, Howell and
Statler.
??????????? Absent and Not Voting: Diserio,
Eldridge, Hamilton and Maynard.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2804) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? H. B. 2869,
Providing for paid leave for certain state officers and employees during a
declared state of emergency.
??????????? On motion of Delegate Cowles, the
House of Delegates refused to concur in the following amendment of the bill by
the Senate and requested the Senate to recede therefrom.
On
page one, by striking out the enacting section and inserting in lieu thereof a
new enacting section, to read as follows:
?That
?15-5-15a of the Code of West Virginia, 1931, as amended, be repealed; and that
that the Code of West Virginia, 1931, as amended, be amended by adding thereto
a new section, designated ?15-5-15b, all to read as follows? and a colon.
And,
By
amending the title of the bill to read as follows:
H. B. 2869 - ?A Bill to repeal ?15-5-15a of the Code
of West Virginia, 1931, as amended, and to amend said code by adding thereto a
new section, designated ?15-5-15b, relating to certain state employees may be
granted a leave of absence with pay while providing assistance as an essential
member of an emergency aid provider during a declared state of emergency.?
Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates and request
concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that
the Senate had passed, with amendment, a bill of the House of Delegates, as
follows:
Com.
Sub. for H. B. 2935,
Relating to state flood protection planning.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
On page one, by striking out everything
after the enacting section and inserting in lieu thereof the following:
?CHAPTER
4. THE LEGISLATURE.
ARTICLE 15. Joint LEGISLATIVE
COMMITTEE ON FLOODING.
?4-15-1. Establishing a Joint Legislative Committee on
Flooding.
?(a) The President of the
Senate and the Speaker of the House of Delegates shall each appoint five
members of their respective houses, at least two of whom shall be members of
the minority party, and at least one shall be a member of the Committee on
Government Organization, to serve an interim committee charged with studying
flood damage reduction and flood plain management. The President and the
Speaker shall each designate a Chair from among the five committee members of
their respective houses. This committee shall be known as the ?Joint
Legislative Committee on Flooding? and shall study all activities relating to
flood protection and shall make recommendations to the Joint Committee on
Government and Finance, which offer solutions to reduce the reality and threat
of future loss of life and property damages associated with flooding.
(b) The expenses of the committee are to be approved by the Joint
Committee on Government and Finance and paid from legislative appropriations.
(c) The Chair of the State Resiliency Office, created pursuant to
article thirty, chapter twenty-nine of this code, shall report quarterly to the
committee, and shall prepare an annual report to the committee no later than
December 31 of each year.
(d) The Chairs of the committee shall report annually, each
January, to the Joint Committee on Government and Finance, with any proposals
or legislation as may be deemed necessary to prevent or reduce the risk of
flooding in this state.
CHAPTER
29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 30. STATE RESILIENCY AND FLOOD
PROTECTION PLAN ACT.
?29-30-1. Short title; legislative findings; purpose.
(a) This
article may be known and cited as the ?Resiliency and Flood Protection Planning
Act?.
(b) The
West Virginia Legislature finds that:
(1)
Flooding has affected each of the fifty-five counties and thirty-two major watersheds
within the state;
(2) Over
the past fifty-two years, more than two hundred and eighty-two West Virginians
have died in floods;
(3)
Between January 1996 and January 2017, there have been twenty-seven federal
disaster declarations in West Virginia involving flooding; and
(4) In
June 2016 much of West Virginia suffered devastating flooding.
(5)
Despite the many state and federal flood protection programs and projects,
flooding continues to be West Virginia?s most common and widespread natural disaster.
(c) It
is the purpose of this article to provide a comprehensive and coordinated
statewide resiliency and flood protection planning program to save lives, and
develop community and economic resiliency plans including, but not limited to,
reducing or mitigating flood damage while supporting economic growth and
protecting the environment.
?29-30-2. State Resiliency Office.
(a) The
State Resiliency Office is hereby created. The office shall be organized within
the Development Office in the Department of Commerce as the recipient of
disaster recovery and resiliency funds, excluding federal Stafford Act funds,
and the coordinating agency of recovery and resiliency efforts, including
matching funds for other disaster recovery programs, excluding those funds and
efforts under the direct control of the State Coordinating Officer designated
by the Governor for a particular event. The State Resiliency Office Board is
also established and shall consist of the following eight members: the
Secretary of the Department of Commerce or his or her designee; The Director of
the Division of Natural Resources or his or her designee; the Secretary of the
Department of Environmental Protection or his or her designee; the Executive
Director of the State Conservation Agency or his or her designee; the Secretary
of the Department of Military Affairs and Public Safety or his or her designee;
the Secretary of Transportation or his or her designee; the Adjutant General of
the West Virginia National Guard or his or her designee; and the Director of
the Division of Homeland Security and Emergency Management within the
Department of Military Affairs and Public Safety or his or her designee.
(b) The
Secretary of the Department of Commerce shall be the chair of the State
Resiliency Office Board. In the absence of the chair, any member designated by
the members present may act as chair.
?(c) The board shall meet no less than once
each calendar quarter at the time and place designated by the chair. All
decisions of the board shall be decided by a majority vote of the members.
(d) The
chair shall provide adequate staff from their respective office, to ensure the
meetings of the board are properly noticed, meetings of the board are
facilitated, board meeting minutes are taken, records and correspondence kept
and that reports of the board are produced timely.
?29-30-3. Authority of State Resiliency Office; authority of board.
The
State Resiliency Office, through its board may:
(1)
Serve as coordinator of all economic and community resiliency planning and
implementation efforts, including but not limited to flood protection programs
and activities in the state;
(2)
Annually review the state flood protection plan and update the plan no less
than biannually;
(3)
Recommend legislation to reduce or mitigate flood damage;
(4)
Report to the Joint Legislative Committee on Flooding at least quarterly;
(5)
Catalog, maintain and monitor a listing of current and proposed capital
expenditures to reduce or mitigate flood damage or other resiliency efforts;
(6) Coordinate
planning of flood projects with federal agencies;
(7)
Improve professional management of flood plains;
(8)
Provide education and outreach on flooding issues to the citizens of this
state;
(9)
Establish a single web site integrating all agency flood information;
(10)
Monitor federal funds and initiatives that become available for disaster
recovery and economic and community resiliency;
(11)
Pursue additional funds and resources to assist not only with long term
recovery efforts but also long term community and state wide resiliency
efforts;
(12)
Coordinate, integrate and expand planning efforts in the state for hazard
mitigation, long-term disaster recovery and economic diversification;
(13)
Coordinate long-term disaster recovery efforts in response to disasters as they
occur;
(14)
Establish and facilitate regular communication between federal, state, local
and private sector agencies and organizations to further economic and disaster
resilience; and
(15)
Take all other actions necessary and proper to effectuate the purposes of this
article.
?29-30-4. Reporting to the Joint Legislative Committee on Flooding.
?(a) The chair of the board of the State
Resiliency Office shall report, at a minimum of quarterly, to the Joint
Legislative Committee on Flooding, created pursuant to article fifteen, chapter
four of this code, in sufficient detail for the committee to be aware of the
activities of the board to assure progress toward reducing and mitigating flood
damage within this state while respecting and complying with the Takings Clause
of the United States Constitution, the West Virginia Constitution, and related
precedential court opinions, and to develop legislative recommendations.
(b) The
chair of the council shall submit an annual report to the committee by December
31 of each year, along with any recommended legislation, budget requests and a
summary of the activities of the board for the previous year.?
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2935 - ?A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article, designated
?4-15-1; and to amend said code by adding thereto a new article, designated
?29-30-1, ?29-30-2, ?29-30-3 and ?29-30-4, all relating to state flood
protection generally; establishing a Joint Legislative Committee on Flooding
and providing for duties; establishing the Resiliency and Flood Protection
Planning Act; providing legislative findings and purpose; creating the State
Resiliency Office within the Development Office in the Department of Commerce;
establishing a State Resiliency Office Board; providing certain duties and
authorities of the State Resiliency Office; and requiring reporting to the
Legislature.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 550),
and there were--yeas 100, nays none, absent and not voting none.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2935) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 3080, Requiring instruction in the
Declaration of Independence and the United States Constitution.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
On
page three, section nine, line fifty-nine, by striking out the words ?at least
three hours of?.
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 551),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Iaquinta.
??????????? Absent and Not Voting: Criss.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 3080) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the House of Delegates amendment, with amendment, and the
passage, as amended, of
??????????? Com.
Sub. for S. B. 333, Requiring
all DHHR-licensed facilities access WV Controlled Substances Monitoring Program
Database.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
??????????? On page two, section four,
subsection (b), subdivision (8), by striking out the words ?the first name,
last name and middle initial, address and birth date of the person picking up
the prescription? and inserting in lieu thereof the words ?information about
the person picking up the prescription?.
On
page eleven, section nine, subsection (a), subdivision (8), by striking out the
words ?the first name, last name and middle initial, address and birth date of
the person picking up the prescription? and inserting in lieu thereof the words
?information about the person picking up the prescription?.
And,
By
amending the title of the bill to read as follows:
Com. Sub. for S. B. 333 - ?A Bill to amend and reenact ?60A-9-4,
?60A-9-5 and ?60A-9-5a of the Code of West Virginia, 1931, as amended; and to
amend said code by adding thereto a new section, designated ?60A-9-9, all
relating to the Controlled Substances Monitoring Program database; requiring
reporting instances of an overdose or a suspected overdose to the database; setting
out elements to be reported; allowing access to the database to deans of the
state?s medical schools or their designees for monitoring prescribing practices
of prescribing faculty members, prescribers and residents enrolled in a degree
program at the school where the dean serves; allowing access to designated
physician reviewers for medical provider employers; providing access to a
physician reviewer designated by an employer of medical providers for
monitoring prescribing practices of physicians, advance practice registered
nurses or physician assistants in their employ; providing access to chief
medical officers of a hospital or a physician designated by the chief executive
officer of a hospital who does not have a chief medical officer for monitoring prescribing
practices of prescribers who have admitting privileges to the hospital;
providing that information obtained from accessing the West Virginia Controlled
Substances Monitoring Program database shall be documented in a patient?s
medical record maintained by a private prescriber or any inpatient facility
licensed pursuant to Public Health; allowing the Board of Pharmacy to require
that drugs of concern be reported to the database; clarifying identity
information required to be retained by dispensers of controlled substances
regarding persons picking up prescriptions other than the patient; exempting
reporting requirements for drugs of concern from criminal penalties; allowing
duly authorized agents of the Office of Health Facility Licensure and Certification
to access the database for use in certification, licensure and regulation of
health facilities; providing that a failure to report drugs of concern may be
considered a violation of the practice act of the prescriber and may result in
discipline by the appropriate licensing board; providing for rulemaking;
requiring the licensing boards to report to the Board of Pharmacy when notified
of unusual prescribing habits of a licensee; and making technical corrections.?
??????????? The
question being on the passage of the bill, the yeas and nays were taken (Roll No. 552), and there were--yeas
100, nays none, absent and not voting none.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 333) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the House of Delegates amendment, with a title amendment, and
the passage, as amended, of
??????????? Com. Sub. for S. B. 606, Relating to minimum wage and maximum hours for employees.
??????????? On motion of Delegate Cowles, the House concurred in the
following Senate title amendment:
Com. Sub. for S. B. 606 ? ?A Bill to amend and reenact ?21-5C-1
of the Code of West Virginia, 1931, as amended, relating to minimum wage and
maximum hour standards for employees by a recreational establishment which does
not operate for more than seven months in any calendar year during the
preceding calendar year or had average receipts for any six months of the year
which were not more than thirty-three and one-third per centum of its average
receipts for the other six months of that year; and requiring any such employee
is compensated on a salary basis in an annual amount of not less than two
thousand eighty times the West Virginia state minimum wage as stated in section
two of this article.?
??????????? The
question being on the passage of the bill, the yeas and nays were taken (Roll No. 553), and there were--yeas
54, nays 41, absent and not voting 5, with the nays and absent and not voting
being as follows:
??????????? Nays: Baldwin, Barrett, Bates,
Boggs, Brewer, Canestraro, Caputo, Dean, Diserio, Eldridge, E. Evans, Ferro,
Fleischauer, Fluharty, Hamilton, Hicks, Hornbuckle, Iaquinta, Isner, Lewis,
Longstreth, Love, Lovejoy, Lynch, Marcum, Miley, R. Miller, Moye, Pethtel,
Phillips, Pushkin, Pyles, Queen, Rohrbach, Rowe, Sponaugle, Storch, Thompson,
Wagner, Ward and Williams.
??????????? Absent and Not Voting: Blair, Folk,
Robinson, Rodighiero and Upson.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 606) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect from passage, a bill
of the House of Delegates, as follows:
??????????? Com.
Sub. for H. B. 2219, Authorizing miscellaneous boards and agencies to
promulgate legislative rules.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
??????????? On page one, 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. Commissioner of Agriculture.
(a) The
legislative rule filed in the State Register on August 23, 2016, authorized
under the authority of section two, article nine, 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
September 23, 2016, relating to the Commissioner of Agriculture (animal disease
control, 61 CSR 01), is
authorized.
(b) The
legislative rule filed in the State Register on August 23, 2016, authorized
under the authority of section three, article thirty-four, chapter nineteen of
this code relating to the Commissioner of Agriculture (dangerous wild animals, 61 CSR 30), is authorized.
(c)
The legislative rule filed in the State Register on August 23, 2016, authorized
under the authority of section four, article one-c, chapter nineteen of this
code, relating to the Commissioner of Agriculture (livestock care standards, 61 CSR 31), is authorized.
(d)
The legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section one, article two-h, 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
September 23, 2016, relating to the Commissioner of Agriculture (captive
cervid, 61 CSR 34), is authorized with the following amendments:
On
page two, subsection 2.10, by striking out ?Class II? and inserting in lieu
thereof ?Class I?;
On
page two, by striking out subsection 2.17 and inserting in lieu thereof a new
subsection 2.17 to read as follows:
??????????? ?2.17. Slaughter facility? means a
slaughter facility with a valid captive cervid license operating under state or
federal inspection that may hold cervids for up to seventy-two (72) hours prior
to slaughtering, or a slaughter facility with no captive cervid facility
license operating under state or federal inspection that must slaughter all
cervids within the operating day of receipt of the animal(s).?;
On
page four, by striking out subsection 5.1 and inserting in lieu thereof a new
subsection 5.1 to read as follows:
??????????? ?5.1. An updated inventory record
containing birth and death records, and testing results shall be provided
biannually: at license renewal on June 30 and by December 31.?;
??????????? On page five, paragraph 8.1.a.2, by
striking out ?white-tailed deer? and inserting in lieu thereof ?cervids?;
??????????? On page five, paragraph 8.1.a.5, by
striking out ?white-tailed deer? and inserting in lieu thereof ?cervids?;
??????????? On page five, subparagraph
8.1.b.3.d., by striking out ?Flooring? and inserting in lieu thereof
?Flooding?;
??????????? On page eight, by striking out all
of subsection 10.2 and inserting in lieu thereof a new subsection 10.2 to read
as follows:
??????????? ?10.2. A licensee shall forward a copy of the records of
all acquisitions, mortalities by unknown cause, sales or possession transfers
to the state veterinarian?s office within fifteen (15) days. Applications to
receive or transfer captive cervids shall be made on forms provided by the
Department.?;
On
page eight, subsection 11.6, after the word ?months?, by inserting a comma and
the following words: or from an out-of-state captive cervid facility which is
located within a fifteen (15) mile radius of a confirmed CWD or TB positive
cervid in the last sixty (60) months.?;
On
page ten, by striking out subsection 12.2 and inserting in lieu thereof a new
subsection 12.2 to read as follows:
?12.2 Any captive cervid that escapes from a
captive cervid facility shall be dispatched by the Department or DNR personnel,
unless after review by the Commissioner of Agriculture and the West Virginia
State Veterinarian it is determined that the escaped captive cervid, after
being secured and returned to the premise from which it escaped, does not
present a health risk to the public, other captive cervids or wildlife: Provided, That all escaped cervids that
are sourced from a known, confirmed TB and CWD containment area will be
dispatched.?;
??????????? On page eleven, subsection 13.6, by
striking out the words ?if from a captive cervid facility? and inserting in
lieu thereof the word ?number?;
??????????? On page eleven, by un-striking
subsection 3.7;
??????????? And,
By
renumbering the remaining subsection.
??64-9-2. Board of
Architects.
The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section one, article twelve, chapter thirty of this
code, modified by the Board of Architects to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on
October 5, 2016, relating to the Board of Architects (registration of
architects, 2 CSR 01), is authorized with the
following amendments:
On
page one, subsection 1.5, by striking out the phrase ?fifteen (15)? and
inserting in lieu thereof the phrase ?ten (10)?.
?64-9-3. Athletic Commission.
(a) The
legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section twenty-four, article five-a, chapter twenty-nine
of this code, modified by the Athletic Commission to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on
December 20, 2016, relating to the Athletic Commission (administrative rules of
the West Virginia State Athletic Commission, 177 CSR 01), is authorized with the following
amendments:
On
page four, after subdivision ?4.5.g.? by striking out the words ?No fee for
amateurs. --? and inserting in lieu thereof ?4.6?;
On
page four, in the paragraph beginning with the words ?No fee for amateurs?
after the words ?amateur contestant or a? by striking out the word ?managers?
and inserting in lieu thereof the word ?manager?;
On
page eight, in the section heading ?11a. Testing for Older Fighters?, by
striking out 11.a and inserting in lieu thereof ?12?;
On
page eight, by striking out 11a.1 and inserting in lieu thereof ?12.1?;
On
page nine, by striking out 11a.2 and inserting in lieu thereof ?12.2?;
On
page nine, by striking out 11a.3 and inserting in lieu thereof ?12.3?;
On
page nine, by striking out 11a.3.a and inserting in lieu thereof ?12.3.a?;
??????????? On page nine, by striking out
11a.3.b and inserting in lieu thereof ?12.3.b?;
??????????? On page nine, by striking out
11a.3.c and inserting in lieu thereof ?12.3.c?;
??????????? On page nine, by striking out 11a.4
and inserting in lieu thereof ?12.4?;
On
page nine, after subsection 11a.4 by adding a new subsection to read as
follows:
??12.5 The applicant, or by contract, the
promoter, shall pay for any medical testing required in this section: Provided, That the applicant is
responsible to be tested timely pursuant to the applicable rules of the
Commission.? and by renumbering the remaining sections;
?On page eleven, subsection 25.1, by striking
out the words ?shall neither? and inserting in lieu thereof the words ?may
not?;
On
page thirteen, subsection 30.2, by striking out the word ?provision? and
inserting in lieu thereof the word ?section?;
On
page twenty-one, in the section heading, by striking out ?45a? and inserting in
lieu thereof ?47?;
On
page twenty-one, by striking out ?45a.1? and inserting in lieu thereof ?47.1?;
On
page twenty-one, by striking out ?45a.2? and inserting in lieu thereof ?47.2?;
On
page twenty-one, by striking out ?45a.2.a? and inserting in lieu thereof
?47.2.a?;
On
page twenty-one, by striking out ?45a.2.a.1? and inserting in lieu thereof
?47.2.a.1?;
On
page twenty-one, by striking out ?45a.2.a.2? and inserting in lieu thereof
?47.2.a.2?;
On
page twenty-one, by striking out ?45a.2.a.3? and inserting in lieu thereof
?47.2.a.3?;
On
page twenty-one, by striking out ?45a.2.a.4? and inserting in lieu thereof
?47.2.a.4?;
On
page twenty-one, by striking out ?45a.2.a.5? and inserting in lieu thereof
?47.2.a.5?;
On
page twenty-one, by striking out ?45a.2.b? and inserting in lieu thereof
?47.2.b?;
On
page twenty-one, by striking out ?45a.2.b.1? and inserting in lieu thereof
?47.2.b.1?;
On
page twenty-one, by striking out ?45a.2.b.2? and inserting in lieu thereof
?47.2.b.2?;
On
page twenty-one, in paragraph 45a.2.a.2, after the words ?wear foot pads? by
adding the words ?or shin guard instep pads?;
On
page twenty-one, in paragraph 45a.2.a.2, after the word ?Footpads? by adding
the words ?or shin guard instep pads?;
On
page twenty-one, by striking out ?45a.2.b.3? and inserting in lieu thereof
?47.2.b.3?;
On
page twenty-one, by striking out ?45a.2.b.4? and inserting in lieu thereof
?47.2.b.4?;
On
page twenty-two, by striking out ?45a.2.c? and inserting in lieu thereof
?47.2.c?;
On
page twenty-two, by striking out ?45a.2.c.1? and inserting in lieu thereof
?47.2.c.1?;
On
page twenty-two, by striking out ?45a.2.c.2? and inserting in lieu thereof
?47.2.c.2?;
On
page twenty-two, by striking out ?45a.2.c.3? and inserting in lieu thereof
?47.2.c.3?;
On
page twenty-two, by striking out ?45a.2.c.4? and inserting in lieu thereof
?47.2.c.4?;
On
page twenty-two, by striking out ?45a.2.c.5? and inserting in lieu thereof
?47.2.c.5?;
On
page twenty two, paragraph 45a.2.c.5., after the sentence ending with the words
?two (2) minutes? duration.? by striking out the remainder of the paragraph;
On
page twenty-two, after 45a.2.c.5., by adding a new paragraph to read as
follows:
?47.2.c.6.
An amateur contestant?s fourth and each subsequent amateur bout shall consist
of three (3) rounds and three (3) minutes duration.?;
On
page twenty-two, by striking out ?45a.3? and inserting in lieu thereof ?47.3?;
On
page twenty-two, by striking out ?45a.3.a? and inserting in lieu thereof
?47.3.a?;
On
page twenty-two, by striking out ?45a.3.a.1? and inserting in lieu thereof
?47.3.a.1?;
On
page twenty-two, by striking out ?45a.3.a.2? and inserting in lieu thereof
?47.3.a.2?;
On
page twenty-two, by striking out ?45a.3.a.3? and inserting in lieu thereof
?47.3.a.3?;
On
page twenty-two, by striking out ?45a.3.b? and inserting in lieu thereof ?47.3.b?;
On
page twenty-two, by striking out ?45a.3.b.1? and inserting in lieu thereof
?47.3.b.1?;
On
page twenty-two, by striking out ?45a.3.b.2? and inserting in lieu thereof
?47.3.b.2?;
On
page twenty-two, by striking out ?45a.3.b.3? and inserting in lieu thereof
?47.3.b.3?;
On
page twenty-two, by striking out ?45a.3.b.4? and inserting in lieu thereof
?47.3.b.4?;
On
page twenty-two, by striking out ?45a.3.b.5? and inserting in lieu thereof
?47.3.b.5?;
On
page twenty-two, by striking out ?45a.3.b.6? and inserting in lieu thereof
?47.3.b.6?;
On
page twenty-two, by striking out ?45a.3.b.7? and inserting in lieu thereof
?47.3.b.7?;
On
page twenty-three, by striking out ?45a.3.c? and inserting in lieu thereof
?47.3.c?;
On
page twenty-three, by striking out ?45a.3.c.1? and inserting in lieu thereof
?47.3.c.1?;
On
page twenty-three, by striking out ?45a.3.c.2? and inserting in lieu thereof
?47.3.c.2?;
On
page twenty-three, by striking out ?45a.3.c.3? and inserting in lieu thereof
?47.3.c.3? and by renumbering the remaining sections;
On
page twenty three, paragraph 45a.3.c.3., after the sentence ending with the
words ?two (2) minutes duration.? by striking out the remainder of the
paragraph;
And,
On
page twenty-three, after 45a.3.c.3., by adding a new paragraph to read as
follows:
?47.3.c.4.
An amateur contestant?s fourth and each subsequent amateur bout shall consist
of three (3) rounds and three (3) minutes? duration.?.
(b) The legislative rule filed in the
State Register on August 24, 2016, authorized under the authority of section
twenty-four, article five-a, chapter twenty-nine of this code, modified by the
Athletic Commission to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on December 20, 2016,
relating to the Athletic Commission (regulation of mixed martial arts, 177 CSR 02), is authorized.
?64-9-4. Auditor?s Office.
(a) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section ten, article three, chapter twelve of this code,
modified by the Auditor?s Office to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on September 21,
2016, relating to the Auditor?s Office (standards for requisitions for payment
issued by state officers on the Auditor, 155 CSR 01), is authorized with the following amendment:
On page
eleven, by striking subdivision 10.1.e in its entirety.
(b) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section nine, article eight, chapter eleven of this
code, modified by the Auditor?s Office to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on
September 21, 2016, relating to the Auditor?s Office (procedure for local
levying bodies to apply for permission to extend time to meet as levying body, 155 CSR 08), is
authorized.
?64-9-5. Board of Barbers and Cosmetologists.
(a) The legislative
rule filed in the State Register on August 24, 2016, authorized under the
authority of section six, article twenty-seven, chapter thirty of this code,
modified by the Board of Barbers and Cosmetologists to meet the objections of
the Legislative Rule-Making Review Committee and refiled in the State Register
on January 25, 2017, relating to the Board of Barbers and Cosmetologists
(qualifications, training, examination and certification of instructors in
barbering and cosmetology, 3 CSR 02),
is authorized.
(b)
The legislative rule filed in the State Register on August 19, 2016, authorized
under the authority of section six, article twenty-seven, chapter thirty of
this code, relating to the Board of Barbers and Cosmetologists (licensing
schools of barbering, cosmetology, nail technology and aesthetics, 3 CSR 03), is authorized.
(c)
The legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section six, article twenty-seven, chapter thirty of
this code, modified by the Board of Barbers and Cosmetologists to meet the
objections of the Legislative Rule-Making Review Committee and refiled in the
State Register on January 26, 2017, relating to the Board of Barbers and
Cosmetologists (operational standards for schools of barbering, cosmetology,
hair styling, nail technology and aesthetics, 3 CSR 04), is authorized with the
following amendment:
On
page three, by striking out all of subdivision 3.1.r. in its entirety;
On
page three, subdivision 3.2.d. by striking out the sentence ?Theory classes
shall be taught at least 12 hours per week.?;
And,
On
page three, by striking out all of subdivision 3.2.s. in its entirety.
(d) The
legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section six, article twenty-seven, chapter thirty of
this code, modified by the Board of Barbers and Cosmetologists to meet the
objections of the Legislative Rule-Making Review Committee and refiled in the
State Register on January 19, 2017, relating to the Board of Barbers and
Cosmetologists (operation of barber, beauty, nail and aesthetic shops/salons
and schools of barbering and beauty culture, 3 CSR 05), is authorized.
(e)
The legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section six, article twenty-seven, chapter thirty of
this code, modified by the Board of Barbers and Cosmetologists to meet the
objections of the Legislative Rule-Making Review Committee and refiled in the
State Register on January 19, 2017, relating to the Board of Barbers and
Cosmetologists (schedule of fees, 3 CSR 06), is authorized.
(f) The
legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section six, article twenty-seven, chapter thirty of
this code, modified by the Board of Barbers and Cosmetologists to meet the
objections of the Legislative Rule-Making Review Committee and refiled in the
State Register on January 19, 2017, relating to the Board of Barbers and
Cosmetologists (continuing education, 3 CSR 11), is authorized with the following
amendments:
On page one,
subsection 1.1 to read as follows:
Scope. ? The
legislative rule establishes requirements for continuing education to practice
hair styling, barbering, cosmetology, manicuring/nail technology, and
aesthetics. All persons licensed by the Board to practice beauty culture must
earn a minimum of four (4) hours of continuing education credits annually.
Licensees who have been licensed for twenty (20) years or more are exempt from
the continuing education requirements but must take a three (3) hour sanitation
class every other year.
And;
On page three,
subsection 4.4 to read as follows:
4.4 Licensees who have been licensed for
twenty (20) years or more are exempt from the continuing education requirements
but must take a three (3) hour sanitation class every other year.
(g)
The legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section eight-a, article twenty-seven, chapter thirty of
this code, modified by the Board of Barbers and Cosmetologists to meet the
objections of the Legislative Rule-Making Review Committee and refiled in the
State Register on January 19, 2017, relating to the Board of Barbers and
Cosmetologists (barber apprenticeship, 3 CSR 13), is authorized.
(h)
The legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section six, article twenty-seven, chapter thirty of
this code, relating to the Board of Barbers and Cosmetologists (waxing
specialist, 3 CSR 14), is authorized.
?64-9-6. Board of Examiners in Counseling.
(a) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section six, article thirty-one, chapter thirty of this
code, modified by the Board of Examiners in Counseling to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the State
Register on January 25, 2017, relating to the Board of Examiners in Counseling
(licensed professional counselor fees, 27 CSR 02), is authorized.
(b) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section six, article thirty-one, chapter thirty of this
code, modified by the Board of Examiners in Counseling to meet the objections
of the Legislative Rule-making Review Committee and refiled in the State
Register on January 25, 2017, relating to the Board of Examiners in Counseling
(licensed professional counselor license renewal and continuing professional
education requirements, 27 CSR 03), is authorized.
(c) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section six, article thirty-one, chapter thirty of this
code, modified by the Board of Examiners in Counseling to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the State
Register on January 25, 2017, relating to the Board of Examiners in Counseling
(marriage and family therapist fees, 27 CSR 09), is authorized.
(d) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section six, article thirty-one, chapter thirty of this
code, modified by the Board of Examiners in Counseling to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the State
Register on January 25, 2017, relating to the Board of Examiners in Counseling
(marriage and family therapist license renewal and continuing professional
education requirements, 27 CSR 10), is authorized with the following amendment:
On page
four, subdivision 4.1.b. after the words ?continuing education? by unstriking
the stricken words ?on a biennium basis beginning?;
And,
On page
four, subdivision 4.1.b. after the words ?license renewal? by unstriking
the words ?on or after?.
?64-9-7. Dangerous Wild Animal Board.
The legislative rule filed in the State
Register on February 11, 2016, authorized under the authority of section three,
article thirty-four, chapter nineteen of this code, modified by the Dangerous
Wild Animal Board to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the State Register on August 31, 2016, relating to the
Dangerous Wild Animal Board (dangerous wild animals, 74 CSR 01),
is authorized.
?64-9-8. Board of
Dentistry.
The
legislative rule filed in the State Register on July 26, 2016, authorized under
the authority of section six, article four, chapter thirty of this code,
modified by the Board of Dentistry to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on September 2,
2016, relating to the Board of Dentistry (rule for the West Virginia Board of
Dentistry, 5 CSR 01), is authorized with the
following amendments:
On page one, by striking out
subsection 1.5 and inserting in lieu thereof a new subsection 1.5, to read as
follows:
?1.5 Sunset Date ? This rule shall
terminate and have no further force or effect upon the expiration of 10 years
from its effective date.?
And,
On page four, after subsection 4.2,
by inserting a new subsection 4.3, to read as follows:
?4.3 Teaching Permits with U.S. Specialty Training. The
Board of Dentistry may issue a teaching permit to an applicant trained in
foreign dental schools, who possess a certificate of completed dental specialty
training from a U. S. or Canadian dental school and who has received U. S.
Board certification. The permit shall be issued only upon certification of the
dean of a dental school located in this state, that the applicant is a member
of the staff at that school. The permits are valid for one year and may be
reissued by the Board with a written recommendation of the dental school dean.
The holder of the permit may perform all operations which a person licensed to
practice dentistry in this state may perform, but only within the confines of
the primary location of the dental school, or teaching hospital adjacent to a
dental school located within the state and as an adjunct to his or her teaching
functions in the dental school.?
?64-9-9. Board of Medicine.
(a)
The legislative rule filed in the State Register on July 12, 2016, authorized
under the authority of section seven, 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
September 1, 2016, relating to the Board of Medicine (licensing and
disciplinary procedures: physicians; podiatrists, 11 CSR 1A), is authorized with the
following amendment:
On page one, by deleting subsection
1.5 and inserting a new subsection 1.5, to read as follows:
?1.5 Sunset Date ? This rule
shall terminate and have no further force or effect upon the expiration of 5
years from its effective date.?
(b)
The legislative rule filed in the State Register on July 12, 2016, authorized
under the authority of section three, article three-e, 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
September 1, 2016, relating to the Board of Medicine (licensure, disciplinary
and complaint procedures, continuing education, physician assistants, 11 CSR 1B), is authorized with the
following amendment:
On page one, by deleting subsection
1.5 and inserting a new subsection 1.5, to read as follows:
?1.5 Sunset Date ? This rule
shall terminate and have no further force or effect upon the expiration of 5
years from its effective date.?
(c)
The legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section seven, 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
September 26, 2016, relating to the Board of Medicine (dispensing of legend
drugs by practitioners, 11 CSR 5), is authorized with the
following amendment:
On page one, by deleting subsection
1.5 and inserting a new subsection 1.5, to read as follows:
?1.5 Sunset Date ? This rule
shall terminate and have no further force or effect upon the expiration of 5
years from its effective date.?
?64-9-10. Board of Optometry.
The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section six, article eight, chapter thirty of this code,
modified by the Board of Optometry to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on October 3,
2016, relating to the Board of Optometry (continuing education, 14 CSR 10), is authorized.
?64-9-11. Board of Osteopathic Medicine.
??????????? (a) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section three, article three-e, chapter thirty of this
code, modified by the Board of Osteopathic Medicine to meet the objections of
the Legislative Rule-Making Review Committee and refiled in the State Register
on September 29, 2016, relating to the Board of Osteopathic Medicine (licensing
procedures for osteopathic physicians, 24 CSR 01), is authorized.
(b) The
legislative rule filed in the State Register on August 29, 2016, authorized
under the authority of section three, article three-e, chapter thirty of this
code, modified by the Board of Osteopathic Medicine to meet the objections of
the Legislative Rule-Making Review Committee and refiled in the State Register
on September 29, 2016, relating to the Board of Osteopathic Medicine
(osteopathic physician assistants, 24 CSR 02), is
authorized.
?64-9-12. Board of Pharmacy.
(a) The
legislative rule filed in the State Register on August 18, 2016, authorized
under the authority of section seven, article five, chapter thirty of this
code, modified by the Board of Pharmacy to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on
December 19, 2016, relating to the Board of Pharmacy (licensure and practice of
pharmacy, 15 CSR 01), is authorized.
(b) The
legislative rule filed in the State Register on August 18, 2016, authorized
under the authority of section seven, article five, chapter thirty of this
code, modified by the Board of Pharmacy to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on December 19,
2016, relating to the Board of Pharmacy (mail-order and non-resident
pharmacies, 15 CSR 06), is authorized.
??????????? (c)
The legislative rule
effective on May 17, 2015, authorized under the authority of section seven,
article five, chapter thirty of this code, relating to the West Virginia Board
of Pharmacy (registration of pharmacy technicians, 15 CSR 7), is authorized,
with the following amendment:
??????????? On page one, by inserting a new
subsection 1.5, to read as follows:
?1.5
Sunset Date ? This rule shall terminate and have no further force or effect
upon the expiration of 10 years from its effective date.?
??????????? On page three, subsection 4.1, by
striking the phrase ?The training program shall, at a minimum contain the
following:? and inserting in lieu thereof the phrase ?A competency based
pharmacy technician education and training program shall, at a minimum contain
the following:?
??????????? And,
??????????? On page five, subsection 4.3, by
striking out subdivision (a), and inserting in lieu thereof a new subdivision
(a), to read as follows:
??????????? ?(a) has graduated from a high
school or obtained a Certificate of General Educational Development (GED) or
its equivalent, or is currently enrolled in a high school competency based
pharmacy technician education and training program;?.
(d) The
legislative rule filed in the State Register on August 18, 2016, authorized
under the authority of section six, article nine, chapter sixty-a of this code,
modified by the Board of Pharmacy to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on December 19,
2016, relating to the Board of Pharmacy (controlled substances monitoring
program, 15 CSR 08), is authorized.
?64-9-13. Board of Physical Therapy.
The
legislative rule filed in the State Register on April 22, 2016, authorized
under the authority of section six, article twenty, chapter thirty of this
code, relating to the Board of Physical Therapy (fees for physical therapist
and physical therapist assistant, 16 CSR 04), is authorized.
?64-9-14. Public Service Commission.
The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section three, article two-e, chapter twenty-four of
this code, modified by the Public Service Commission to meet the objections of
the Legislative Rule-Making Review Committee and refiled in the State Register
on December 13, 2016, relating to the Public Service Commission (telephone
conduit occupancy, 150 CSR 37), is
authorized.
?64-9-15. Board of Examiners for Registered Professional Nurses.
(a) The
legislative rule filed in the State Register on July 29, 2016, authorized under
the authority of section four, article seven, chapter thirty of this code,
modified by the Board of Examiners for Registered Professional Nurses to meet
the objections of the Legislative Rule-Making Review Committee and refiled in
the State Register on September 1, 2016, relating to the Board of Examiners for
Registered Professional Nurses (requirements for registration and licensure and
conduct constituting professional misconduct, 19 CSR 03), is authorized with the following
amendments:
On page one, by striking out
subsection 1.5 and inserting in lieu thereof a new subsection 1.5, to read as
follows:
?1.5 Sunset Date ? This rule
shall terminate and have no further force or effect upon the expiration of 10
years from its effective date.?
And,
On page sixteen, subsection 14.4, after the words ?or other
action.? by adding
?A licensee whose license has been summarily suspended is entitled to a hearing
not less than twenty (20) days after the license was summarily suspended. The
licensee may waive his or her right to a hearing on the summary suspension
within the twenty (20) day period.?
(b) The
legislative rule filed in the State Register on August 2, 2016, authorized
under the authority of section four, article seven, chapter thirty of this
code, modified by the Board of Examiners for Registered Professional Nurses to
meet the objections of the Legislative Rule-Making Review Committee and refiled
in the State Register on September 1, 2016, relating to the Board of Examiners
for Registered Professional Nurses (limited prescriptive authority for nurses
in advanced practice, 19 CSR 08), is
authorized with the following amendment:
On page one, by deleting subsection
1.5 and inserting a new subsection 1.5, to read as follows:
?1.5 Sunset Date ? This rule
shall terminate and have no further force or effect upon the expiration of 5
years from its effective date.?
?64-9-16. State Board of Sanitarians.
??????????? The
legislative rule filed in the State Register on August 11, 2016, authorized
under the authority of section six, article seventeen, chapter thirty of this
code, modified by the State Board of Sanitarians to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on
October 3, 2016, relating to the State Board of Sanitarians (practice of public
health sanitation, 20 CSR 04), is authorized.
?64-9-17. Secretary of State.
(a) The
legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section eleven, article two, chapter three 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 January 17,
2017, relating to the Secretary of State (voter registration at the Division of
Motor Vehicles, 153 CSR 03), is authorized.
(b) The
legislative rule filed in the State Register on August 24, 2016, authorized
under the authority of section twenty-three-a, article two, chapter three 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
January 17, 2017, relating to the Secretary of State (voter registration list
maintenance by the Secretary of State, 153 CSR 05), is authorized.
?64-9-18. Board of Social Work Examiners.
The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section six, article thirty, chapter thirty of this
code, modified by the Board of Social Work Examiners to meet the objections of
the Legislative Rule-Making Review Committee and refiled in the State Register
on September 27, 2016, relating to the Board of Social Work Examiners
(continuing education for social workers and providers, 25 CSR 05), is authorized.
?64-9-19. Board of Speech-Language Pathology and Audiology.
?The legislative rule filed in the State
Register on August 22, 2016, authorized under the authority of section seven,
article thirty-two, chapter thirty of this code, modified by the Board of
Speech-Language Pathology and Audiology to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on
January 23, 2017, relating to the Board of Speech-Language Pathology and
Audiology (licensure of speech-pathology and audiology, 29 CSR 01), is authorized.
?64-9-20. Treasurer?s Office.
(a) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section two, article two, chapter twelve of this code,
modified by the Treasurer?s Office to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on October 21,
2016, relating to the Treasurer?s Office (procedures for deposit of moneys with
the State Treasurer?s Office by state agencies, 112 CSR 04), is authorized.
(b) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section two, article one, chapter twelve of this code,
modified by the Treasurer?s Office to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on October 21,
2016, relating to the Treasurer?s Office (selection of state depositories for
disbursement accounts through competitive bidding, 112 CSR 06), is authorized.
(c)
The legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section two, article one, chapter twelve of this code,
modified by the Treasurer?s Office to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on October 21,
2016, relating to the Treasurer?s Office (selection of state depositories for
receipt accounts, 112 CSR 07),
is authorized.
(d) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section one, article three, chapter twelve of this code,
modified by the Treasurer?s Office to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on October 21,
2016, relating to the Treasurer?s Office (procedures for processing payments
from the state treasury, 112 CSR 08), is authorized.
(e) The legislative rule filed in the
State Register on August 26, 2016, authorized under the authority of section
six, article three-a, chapter twelve of this code, modified by the Treasurer?s
Office to meet the objections of the Legislative Rule-Making Review Committee
and refiled in the State Register on October 21, 2016, relating to the
Treasurer?s Office (procedure for fees in collections by charge, credit or
debit card or by electronic payment, 112 CSR 12),
is authorized.
(f) The
legislative rule filed in the State Register on August 26, 2016, authorized
under the authority of section six, article three-a, chapter twelve of this
code, modified by the Treasurer?s Office to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State Register on
October 21, 2016, relating to the Treasurer?s Office (procedures for providing
services to political subdivisions, 112 CSR 13), is authorized.
?64-9-21. Board of Veterinary Medicine.
The
legislative rule filed in the State Register on June 15, 2016, authorized under
the authority of section five, 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
September 28, 2016, relating to the Board of Veterinary Medicine (standards of
practice, 26 CSR 04), is authorized with the following amendment:
On
page one, by deleting subsection 1.5 and inserting a new subsection 1.5 to read
as follows:
?1.5
Sunset Date ? This rule shall terminate and have no further force or affect
upon the expiration of 10 years from its effective date.?
??????????????? The bill, as amended by the Senate, was
then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 554),
and there were--yeas 93, nays 1, absent and not voting 6, with the nays and
absent and not voting being as follows:
??????????? Nays: Walters.
??????????? Absent and Not Voting: Blair, Criss,
Kelly, Robinson, Rodighiero and Upson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2219) passed.
??????????? Delegate
Cowles moved that the bill take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 555), and there
were--yeas 95, nays none, absent and not voting 5, with the absent and not
voting being as follows:
??????????? Absent and Not Voting: Blair, Kelly,
Robinson, Rodighiero and Upson.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2219) takes effect from its passage.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2359, Relating to offenses and penalties for practicing osteopathic
medicine without a license.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
??????????? On page one, by striking out
everything after the enacting clause and inserting in lieu thereof the
following:
?That
the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated ?30-3-18; that ?30-14-12 be amended and reenacted; and that
said code be amended by adding thereto a new section, designated ?30-14-16, all
to read as follows:
ARTICLE
3. WEST VIRGINIA MEDICAL PRACTICE ACT.
?30-3-18. Combining staff
functions with West Virginia Board of Osteopathic Medicine.
The
West Virginia Board of Medicine may employ investigators, attorneys, clerks and
administrative staff in collaboration with the West Virginia Board of
Osteopathic Medicine to share duties and functions between the two boards when
it may be efficient and practical for the functioning of the boards. Any
sharing of staff or staff resources shall be documented and performed pursuant
to the provisions of section nineteen, article one of this chapter.
ARTICLE
14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
?30-14-12. Offenses;
penalties.
(a)
Each of the following acts shall constitute constitutes a
misdemeanor, punishable upon conviction by a fine of not less than $1,000 nor
more than $10,000:
(a)
The practice or attempting to practice as an osteopathic physician and surgeon
without a license or permit;
(b) (1) The obtaining
of or an attempt to obtain a license or permit to practice in the profession
for money or any other thing of value, by fraudulent misrepresentation;
(c) (2) The making of
any willfully false oath or affirmation whenever an oath or affirmation is
required by this article; and
(d) (3) Advertising,
practicing or attempting to practice under a name other than one?s own.
(b)
Any person who practices or attempts to practice osteopathic medicine without a
license or permit is guilty of a felony and, upon conviction, shall be fined
not more than $10,000, or imprisoned in a correctional facility for not less
than one year nor more than five years, or both fined and imprisoned.?
?30-14-16. Combining staff
functions with West Virginia Board of Medicine.
The
West Virginia Board of Osteopathic Medicine may employ investigators,
attorneys, clerks and administrative staff in collaboration with the West
Virginia Board of Medicine to share duties and functions between the two boards
when it may be efficient and practical for the functioning of the boards. Any
sharing of staff or staff resources shall be documented and performed pursuant
to the provisions of section nineteen, article one of this chapter.
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2359 ? ?A Bill to amend the Code of West Virginia,
1931, as amended, by adding a new section, designated ?30-3-18; to amend and
reenact ?30-14- of said code; and to amend said code by adding thereto a new
section, designated ?30-14-16, all relating generally to the West Virginia
Medical Practice Act; authorizing the West Virginia Board of Medicine and the
West Virginia Board of Osteopathic Medicine to share staff for functions common
to both boards; providing offenses and penalties for practicing osteopathic
medicine without a license; and creating a felony crime of practicing or
attempting to practice osteopathic medicine without a license or permit and
providing criminal penalties.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 556),
and there were--yeas 92, nays 2, absent and not voting 6, with the nays and
absent and not voting being as follows:
??????????? Nays: Folk and McGeehan.
??????????? Absent and Not Voting: Blair, Criss,
Kelly, Robinson, Rodighiero and Upson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2359) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Conference Committee Report Availability
??????????? At 7:04 p.m., the Clerk announced
availability in his office of the report of the Committee of Conference on Com.
Sub. for H. B. 2631, Relating to time standards for disposition of complaint
proceedings.
Messages from the Senate
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, without amendment, a bill of the House of Delegates
as follows:
??????????? Com. Sub. for H. B. 2520,
Prohibiting the use of a tanning device by a person under the age of eighteen.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 2552,
Increasing the pet food registration fee and directing that the additional
money be deposited into the West Virginia Spay Neuter Assistance Fund.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
??????????? On page two, section five, line thirty-seven, by striking
out ?$100?, and inserting in lieu thereof ?$50?.
And,
?On page three, section five, line forty-five,
by striking out ?$70?, and inserting in lieu thereof ?$35?.
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 557),
and there were--yeas 84, nays 11, absent and not voting 5, with the nays and
absent and not voting being as follows:
??????????? Nays: Arvon, Folk, Gearheart, Hill,
Householder, Howell, Kessinger, Marcum, McGeehan, Sobonya and Wilson.
??????????? Absent and Not Voting: Blair, Kelly,
Robinson, Rodighiero and Upson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2552) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect from passage, a bill
of the House of Delegates, as follows:
??????????? Com.
Sub. for H. B. 2801, Expiring funds to the unappropriated balance in the
State Fund from the Department of Revenue, Office of the Secretary ? Revenue
Shortfall Reserve Fund.
??????????? On motion of Delegate Cowles, the House
of Delegates concurred in the following amendment of the bill by the Senate:
??????????? On page one, by striking out
everything after the title and inserting in lieu thereof the following:
Whereas,
The Governor submitted to the Legislature the Executive Budget Document, dated
February 8, 2017, which included a Statement of the State Fund, General
Revenue, setting forth therein the cash balance as of July 1, 2016, and further
included the estimate of revenues for the fiscal year 2017, less net
appropriation balances forwarded and regular appropriations for the fiscal year
2017; and
Whereas, The
Secretary of the Department of Revenue has submitted a monthly General Revenue
Fund Collections Report for the first nine months of fiscal year 2017 as
prepared by the State Budget Office; and
Whereas, This
report demonstrates that the State of West Virginia has experienced a revenue
shortfall of approximately $79 million for the first nine months of fiscal year
2017, as compared to the monthly revenue estimates for the first nine months of
the fiscal year 2017; and
Whereas, Current
economic and fiscal trends are anticipated to result in projected year-end
revenue deficits, including potential significant shortfalls in Personal Income
Tax, Consumers Sales and Use Tax, and Corporation Net Income Tax; and
Whereas,
Projected year-end revenue surpluses in various other General Revenue sources
will only offset a small portion of these deficits; and
Whereas, The
total projected year-end revenue deficit for the General Revenue Fund is
estimated at $192 million; and
Whereas, On
November 4, 2016, the Governor issued Executive Order 8-16 which redirected
certain revenues pursuant to the terms of SB 419 for fiscal year 2017 of
approximately $25.5 million; and
Whereas, On
November 15, 2016, the Governor issued Executive Order 9-16 which directed a
spending reduction for General Revenue appropriations for fiscal year 2017 of
approximately $59.8 million; and
Whereas, On
December 30, 2016, the remaining balance of $5,000,000 in the Personal Income
Tax Reserve Fund was utilized to ensure timely payment of tax refunds; and
Whereas, The
Governor finds that the account balances in the listed accounts exceed that
which is necessary for the purposes for which the accounts were established;
and
Whereas, The
Revenue Shortfall Reserve Fund may be drawn on in the event of a revenue
shortfall in lieu of imposing additional reductions in appropriations;
therefore
??????????? Be
it enacted by the Legislature of West Virginia:
?That the balance of the funds available for
expenditure in the fiscal year ending June 30, 2017, in the Legislative,
Senate, fund 0165, fiscal year 2012, organization 2100, appropriation 02100, be
decreased by expiring the amount of $2,000,000, in the Legislative, Senate,
fund 0165, fiscal year 2012, organization 2100, appropriation 06400, be
decreased by expiring the amount of $1,000,000, in the Legislative, House of
Delegates, fund 0170, fiscal year 2015, organization 2200, appropriation 00500,
be decreased by expiring the amount of $500,000, in the Legislative, House of
Delegates, fund 0170, fiscal year 2015, organization 2200, appropriation 02100,
be decreased by expiring the amount of $1,500,000, in the Legislative, Joint
Expenses, fund 0175, fiscal year 2015, organization 2300, appropriation 10400,
be decreased by expiring the amount of $500,000, in the Executive, Governor?s
Office, fund 0101, fiscal year 2005, organization 0100, appropriation 66500, be
decreased by expiring the amount of $2,000,000, in the Executive, Governor?s
Office ? Civil Contingent Fund, fund 0105, fiscal year 2005, organization 0100,
appropriation 08400, be decreased by expiring the amount of $800,000, in the
Executive, Governor?s Office ? Civil Contingent Fund, fund 0105, fiscal year
2008, organization 0100, appropriation 11400, be decreased by expiring the
amount of $200,000, in the Department of Commerce, West Virginia Development
Office, fund 0256, fiscal year 2009, organization 0307, appropriation 13100, be
decreased by expiring the amount of $400,000, in the Department of Commerce,
West Virginia Development Office, fund 0256, fiscal year 2011, organization
0307, appropriation 13100, be decreased by expiring the amount of $400,000, in
the Department of Commerce, West Virginia Development Office, fund 0256, fiscal
year 2012, organization 0307, appropriation 13100, be decreased by expiring the
amount of $200,000, in the Department of Commerce, West Virginia Development
Office, fund 0256, fiscal year 2007, organization 0307, appropriation 81900, be
decreased by expiring the amount of $500,000, in the Department of Commerce,
West Virginia Development Office, fund 0256, fiscal year 2008, organization
0307, appropriation 81900, be decreased by expiring the amount of $500,000, in
the Department of Commerce, West Virginia Development Office, fund 0256, fiscal
year 2009, organization 0307, appropriation 81900, be decreased by expiring the
amount of $500,000, in the Department of Commerce, West Virginia Development
Office, fund 0256, fiscal year 2010, organization 0307, appropriation 81900, be
decreased by expiring the amount of $1,600,000, in the Department of Commerce,
West Virginia Development Office, fund 0256, fiscal year 2011, organization
0307, appropriation 81900, be decreased by expiring the amount of $1,500,000,
in the Department of Commerce, West Virginia Development Office, fund 0256,
fiscal year 2012, organization 0307, appropriation 81900, be decreased by
expiring the amount of $640,000, in the Department of Commerce, West Virginia
Development Office, fund 0256, fiscal year 2014, organization 0307,
appropriation 81900, be decreased by expiring the amount of $628,000, in the
Department of Commerce, West Virginia Development Office, fund 0256, fiscal
year 2015, organization 0307, appropriation 81900, be decreased by expiring the
amount of $932,000, in the Department of Commerce, West Virginia Development
Office, fund 0256, fiscal year 2012, organization 0307, appropriation 94100, be
decreased by expiring the amount of $650,000, in the Department of Education,
State Board of Education ? State Department of Education, fund 0313, fiscal
year 2011, organization 0402, appropriation 16100, be decreased by expiring the
amount of $150,000, in the Department of Education, State Board of Education ?
State Department of Education, fund 0313, fiscal year 2012, organization 0402,
appropriation 16100, be decreased by expiring the amount of $400,000, in the
Department of Education, State Board of Education ? State Department of
Education, fund 0313, fiscal year 2013, organization 0402, appropriation 16100,
be decreased by expiring the amount of $400,000, in the Department of
Education, State Board of Education ? State Department of Education, fund 0313,
fiscal year 2014, organization 0402, appropriation 16100, be decreased by
expiring the amount of $150,000, in the Department of Education, State Board of
Education ? State Department of Education, fund 0313, fiscal year 2014,
organization 0402, appropriation 88600, be decreased by expiring the amount of
$500,000, in the Department of Health and Human Resources ? Office of the
Secretary, fund 0400, fiscal year 2015, organization 0501, appropriation 19100,
be decreased by expiring the amount of $40,000, in the Department of Health and
Human Resources ? Office of the Secretary, fund 0400, fiscal year 2016,
organization 0501, appropriation 19100, be decreased by expiring the amount of
$60,000, in the Department of Health and Human Resources, Consolidated Medical
Services Fund, fund 0525, fiscal year 2014, organization 0506, appropriation
21900, be decreased by expiring the amount of $1,000,000, in the Department of
Military Affairs and Public Safety, Division of Corrections ? Correctional
Units, fund 0450, fiscal year 2011, organization 0608, appropriation 09700, be
decreased by expiring the amount of $200,000, in the Department of Military
Affairs and Public Safety, Division of Corrections ? Correctional Units, fund
0450, fiscal year 2012, organization 0608, appropriation 09700, be decreased by
expiring the amount of $200,000, in the Department of Military Affairs and
Public Safety, Division of Corrections ? Correctional Units, fund 0450, fiscal
year 2012, organization 0608, appropriation 66100, be decreased by expiring the
amount of $480,000, in the Department of Military Affairs and Public Safety,
Division of Corrections ? Correctional Units, fund 0450, fiscal year 2012,
organization 0608, appropriation 67700, be decreased by expiring the amount of
$1,000,000, in the Department of Military Affairs and Public Safety, Division
of Justice and Community Services, fund 0546, fiscal year 2014, organization
0620, appropriation 56100, be decreased by expiring the amount of $500,000, in
the Department of Military Affairs and Public Safety, Division of Juvenile
Services, fund 0570, fiscal year 2011, organization 0621, appropriation 75500,
be decreased by expiring the amount of $100,000, in the Department of Revenue,
State Budget Office, fund 0595, fiscal year 2009, organization 0703,
appropriation 09900, be decreased by expiring the amount of $80,000, in the
Department of Transportation, Aeronautics Commission, fund 0582, fiscal year
2013, organization 0807, appropriation 13000, be decreased by expiring the
amount of $300,000, in the Department of Veterans? Assistance, fund 0456,
fiscal year 2013, organization 0613, appropriation 28600, be decreased by
expiring the amount of $200,000, in the Department of Veterans? Assistance,
fund 0456, fiscal year 2014, organization 0613, appropriation 28600, be
decreased by expiring the amount of $100,000, in the West Virginia Council for
Community and Technical College Education ? Control Account, fund 0596, fiscal
year 2012, organization 0420, appropriation 66100, be decreased by expiring the
amount of $500,000, in the Higher Education Policy Commission ? Administration
? Control Account, fund 0589, fiscal year 2012, organization 0441,
appropriation 09700, be decreased by expiring the amount of $200,000, in the
Higher Education Policy Commission ? Administration ? Control Account, fund
0589, fiscal year 2012, organization 0441, appropriation 66100, be decreased by
expiring the amount of $1,000,000, in the Department of Revenue, Office of the
Secretary ? Revenue Shortfall Reserve Fund, fund 7005, fiscal year 2017,
organization 0701, be decreased by expiring the amount of $40,404,684.31, in
the Department of Revenue, Insurance Commissioner ? Insurance Commission Fund,
fund 7152, fiscal year 2017, organization 0704, be decreased by expiring the
amount of $20,000,000, in the State Board of Education, fund 3951, fiscal year
2007, organization 0402, appropriation 09900, be decreased by expiring the
amount of $100,000, in the State Board of Education, fund 3951, fiscal year
2008, organization 0402, appropriation 09900, be decreased by expiring the
amount of $300,000, in the State Board of Education, fund 3951, fiscal year
2012, organization 0402, appropriation 09900, be decreased by expiring the
amount of $500,000, in the State Board of Education, fund 3951, fiscal year
2013, organization 0402, appropriation 39600, be decreased by expiring the
amount of $500,000, in the State Board of Education, fund 3951, fiscal year
2014, organization 0402, appropriation 39600, be decreased by expiring the
amount of $500,000, in the State Board of Education, fund 3951, fiscal year
2014, organization 0402, appropriation 93300, be decreased by expiring the
amount of $1,000,000, in the Division of Culture and History ? Lottery
Education Fund, fund 3534, fiscal year 2003, organization 0432, appropriation
86500, be decreased by expiring the amount of $150,000, in the Division of
Culture and History ? Lottery Education Fund, fund 3534, fiscal year 2012,
organization 0432, appropriation 62400, be decreased by expiring the amount of
$40,000, in the Library Commission ? Lottery Education Fund, fund 3559, fiscal
year 2011, organization 0433, appropriation 62500, be decreased by expiring the
amount of $150,000, in the Library Commission ? Lottery Education Fund, fund
3559, fiscal year 2012, organization 0433, appropriation 62500, be decreased by
expiring the amount of $250,000, in the Bureau of Senior Services ? Lottery
Senior Citizens Fund, fund 5405, fiscal year 2011, organization 0508,
appropriation 46200, be decreased by expiring the amount of $150,000, in the
Bureau of Senior Services ? Lottery Senior Citizens Fund, fund 5405, fiscal
year 2012, organization 0508, appropriation 46200, be decreased by expiring the
amount of $350,000, in the Bureau of Senior Services ? Lottery Senior Citizens
Fund, fund 5405, fiscal year 2013, organization 0508, appropriation 46200, be
decreased by expiring the amount of $550,000, in the West Virginia Development
Office, fund 3170, fiscal year 2007, organization 0307, appropriation 92300, be
decreased by expiring the amount of $50,000, in the West Virginia Development
Office, fund 3170, fiscal year 2008, organization 0307, appropriation 25300, be
decreased by expiring the amount of $2,500,000, in the West Virginia
Development Office, fund 3170, fiscal year 2013, organization 0307,
appropriation 09600, be decreased by expiring the amount of $400,000, in the
Division of Corrections ? Correctional Units, fund 6283, fiscal year 2010,
organization 0608, appropriation 75500, be decreased by expiring the amount of
$1,000,000, in the Office of the Treasurer ? Financial Electronic Communication
Fund, fund 1345, fiscal year 2017, organization 1300 be decreased by expiring
the amount of $500,000, in the Attorney General, Consumer Protection Recovery
Fund, fund 1509, fiscal year 2017, organization 1500, be decreased by expiring
the amount of $1,000,000, in the Department of Administration, Board of Risk
and Insurance Management, Premium Tax Savings Fund, fund 2367, fiscal year
2017, organization 0218, be decreased by expiring the amount of $2,000,000, in
the Department of Administration, Capitol Complex Garage Fund, fund 2461,
fiscal year 2017, organization 0211, be decreased by expiring the amount of
$110,467.62, in the Department of Environmental Protect, Dam Safety
Rehabilitation Fund, fund 3025, fiscal year 2017, organization 0313, be
deceased by expiring the amount of $184,848.07, in the Department of Health and
Human Resources, Healthcare Authority Fund, fund 5375, fiscal year 2017,
organization 0507, be decreased by expiring the amount of $500,000 and in the
Public Service Commission, Public Service Commission Fund, fund 8623, fiscal
year 2017, organization 0926, be decreased by expiring the amount of
$4,000,000, all to the unappropriated balance of the State Fund, General
Revenue, to be available during the fiscal year ending June 30, 2017 ,all to
the unappropriated balance of the State Fund, General Revenue, to be available
during the fiscal year ending June 30, 2017.?
And,
By amending the title of the bill to
read as follows:
??????????? Com. Sub. for H. B. 2801 ? ?A Bill expiring funds to the
unappropriated balance in the State Fund, General Revenue, for the fiscal year
ending June 30, 2017, in the amount of $2,000,000 from the Legislative, Senate,
fund 0165, fiscal year 2012, organization 2100, appropriation 02100, in the
amount of $1,000,000 from the Legislative, Senate, fund 0165, fiscal year 2012,
organization 2100, appropriation 06400, in the amount of $500,000 from the
Legislative, House of Delegates, fund 0170, fiscal year 2015, organization
2200, appropriation 00500, in the amount of $1,500,000 from the Legislative,
House of Delegates, fund 0170, fiscal year 2015, organization 2200,
appropriation 02100, in the amount of $500,000 from the Legislative, Joint Expenses,
fund 0175, fiscal year 2015, organization 2300, appropriation 10400, in the
amount of $2,000,000 from the Executive, Governor?s Office, fund 0101, fiscal
year 2005, organization 0100, appropriation 66500, in the amount of $800,000
from the Executive, Governor?s Office ? Civil Contingent Fund, fund 0105,
fiscal year 2005, organization 0100, appropriation 08400, in the amount of
$200,000 from the Executive, Governor?s Office ? Civil Contingent Fund, fund
0105, fiscal year 2008, organization 0100, appropriation 11400, in the amount
of $400,000 from the Department of Commerce, West Virginia Development Office,
fund 0256, fiscal year 2009, organization 0307, appropriation 13100, in the
amount of $400,000 from the Department of Commerce, West Virginia Development
Office, fund 0256, fiscal year 2011, organization 0307, appropriation 13100, in
the amount of $200,000 from the Department of Commerce, West Virginia
Development Office, fund 0256, fiscal year 2012, organization 0307,
appropriation 13100, in the amount of $500,000 from the Department of Commerce,
West Virginia Development Office, fund 0256, fiscal year 2007, organization
0307, appropriation 81900, in the amount of $500,000 from the Department of
Commerce, West Virginia Development Office, fund 0256, fiscal year 2008,
organization 0307, appropriation 81900, in the amount of $500,000 from the
Department of Commerce, West Virginia Development Office, fund 0256, fiscal
year 2009, organization 0307, appropriation 81900, in the amount of $1,600,000
from the Department of Commerce, West Virginia Development Office, fund 0256,
fiscal year 2010, organization 0307, appropriation 81900, in the amount of
$1,500,000 from the Department of Commerce, West Virginia Development Office,
fund 0256, fiscal year 2011, organization 0307, appropriation 81900, in the
amount of $640,000 from the Department of Commerce, West Virginia Development
Office, fund 0256, fiscal year 2012, organization 0307, appropriation 81900, in
the amount of $628,000 from the Department of Commerce, West Virginia
Development Office, fund 0256, fiscal year 2014, organization 0307,
appropriation 81900, in the amount of $932,000 from the Department of Commerce,
West Virginia Development Office, fund 0256, fiscal year 2015, organization
0307, appropriation 81900, in the amount of $650,000 from the Department of
Commerce, West Virginia Development Office, fund 0256, fiscal year 2012,
organization 0307, appropriation 94100, in the amount of $150,000 from the
Department of Education, State Board of Education ? State Department of
Education, fund 0313, fiscal year 2011, organization 0402, appropriation 16100,
in the amount of $400,000 from the Department of Education, State Board of
Education ? State Department of Education, fund 0313, fiscal year 2012, organization
0402, appropriation 16100, in the amount of $400,000 from the Department of
Education, State Board of Education ? State Department of Education, fund 0313,
fiscal year 2013, organization 0402, appropriation 16100, in the amount of
$150,000 from the Department of Education, State Board of Education ? State
Department of Education, fund 0313, fiscal year 2014, organization 0402,
appropriation 16100, in the amount of $500,000 from the Department of
Education, State Board of Education ? State Department of Education, fund 0313,
fiscal year 2014, organization 0402, appropriation 88600, in the amount of
$40,000 from the Department of Health and Human Resources ? Office of the
Secretary, fund 0400, fiscal year 2015, organization 0501, appropriation 19100,
in the amount of $60,000 from the Department of Health and Human Resources ?
Office of the Secretary, fund 0400, fiscal year 2016, organization 0501,
appropriation 19100, in the amount of $1,000,000 from the Department of Health
and Human Resources, Consolidated Medical Services Fund, fund 0525, fiscal year
2014, organization 0506, appropriation 21900, in the amount of $200,000 from
the Department of Military Affairs and Public Safety, Division of Corrections ?
Correctional Units, fund 0450, fiscal year 2011, organization 0608,
appropriation 09700, in the amount of $200,000 from the Department of Military
Affairs and Public Safety, Division of Corrections ? Correctional Units, fund
0450, fiscal year 2012, organization 0608, appropriation 09700, in the amount of
$480,000 from the Department of Military Affairs and Public Safety, Division of
Corrections ? Correctional Units, fund 0450, fiscal year 2012, organization
0608, appropriation 66100, in the amount of $1,000,000 from the Department of
Military Affairs and Public Safety, Division of Corrections ? Correctional
Units, fund 0450, fiscal year 2012, organization 0608, appropriation 67700, in
the amount of $500,000 from the Department of Military Affairs and Public
Safety, Division of Justice and Community Services, fund 0546, fiscal year
2014, organization 0620, appropriation 56100, in the amount of $100,000 from
the Department of Military Affairs and Public Safety, Division of Juvenile
Services, fund 0570, fiscal year 2011, organization 0621, appropriation 75500,
in the amount of $80,000 from the Department of Revenue, State Budget Office,
fund 0595, fiscal year 2009, organization 0703, appropriation 09900, in the
amount of $300,000 from the Department of Transportation, Aeronautics
Commission, fund 0582, fiscal year 2013, organization 0807, appropriation
13000, in the amount of $200,000 from the Department of Veterans? Assistance,
fund 0456, fiscal year 2013, organization 0613, appropriation 28600, in the
amount of $100,000 from the Department of Veterans? Assistance, fund 0456,
fiscal year 2014, organization 0613, appropriation 28600, in the amount of
$500,000 from the West Virginia Council for Community and Technical College
Education ? Control Account, fund 0596, fiscal year 2012, organization 0420,
appropriation 66100, in the amount of $200,000 from the Higher Education Policy
Commission ? Administration ? Control Account, fund 0589, fiscal year 2012,
organization 0441, appropriation 09700, in the amount of $1,000,000 from the
Higher Education Policy Commission ? Administration ? Control Account, fund
0589, fiscal year 2012, organization 0441, appropriation 66100, in the amount
of $40,404,684.31 from the Department of Revenue, Office of the Secretary ?
Revenue Shortfall Reserve Fund, fund 7005, fiscal year 2017, organization 0701,
in the amount of $20,000,000 from the Department of Revenue, Insurance
Commissioner ? Insurance Commission Fund, fund 7152, fiscal year 2017,
organization 0704, in the amount of $100,000 from the State Board of Education,
fund 3951, fiscal year 2007, organization 0402, appropriation 09900, in the
amount of $300,000 from the State Board of Education, fund 3951, fiscal year
2008, organization 0402, appropriation 09900, in the amount of $500,000 from
the State Board of Education, fund 3951, fiscal year 2012, organization 0402,
appropriation 09900, in the amount of $500,000 from the State Board of
Education, fund 3951, fiscal year 2013, organization 0402, appropriation 39600,
in the amount of $500,000 from the State Board of Education, fund 3951, fiscal
year 2014, organization 0402, appropriation 39600, in the amount of $1,000,000
from the State Board of Education, fund 3951, fiscal year 2014, organization
0402, appropriation 93300, in the amount of $150,000 from the Division of
Culture and History ? Lottery Education Fund, fund 3534, fiscal year 2003,
organization 0432, appropriation 86500, in the amount of $40,000 from the
Division of Culture and History ? Lottery Education Fund, fund 3534, fiscal
year 2012, organization 0432, appropriation 62400, in the amount of $150,000
from the Library Commission ? Lottery Education Fund, fund 3559, fiscal year
2011, organization 0433, appropriation 62500, in the amount of $250,000 from
the Library Commission ? Lottery Education Fund, fund 3559, fiscal year 2012,
organization 0433, appropriation 62500, in the amount of $150,000 from the
Bureau of Senior Services- Lottery Senior Citizens Fund, fund 5405, fiscal year
2011, organization 0508, appropriation 46200, in the amount of $350,000 from
the Bureau of Senior Services- Lottery Senior Citizens Fund, fund 5405, fiscal
year 2012, organization 0508, appropriation 46200, in the amount of $550,000
from the Bureau of Senior Services- Lottery Senior Citizens Fund, fund 5405,
fiscal year 2013, organization 0508, appropriation 46200, in the amount of
$50,000 from the West Virginia Development Office, fund 3170, fiscal year 2007,
organization 0307, appropriation 92300, in the amount of $2,500,000 from the
West Virginia Development Office, fund 3170, fiscal year 2008, organization
0307, appropriation 25300, in the amount of $400,000 from the West Virginia
Development Office, fund 3170, fiscal year 2013, organization 0307,
appropriation 09600, in the amount of $1,000,000 from the Division of
Corrections ? Correctional Units, fund 6283, fiscal year 2010, organization
0608, appropriation 75500, in the amount of $500,000 from the Office of the
Treasurer, Financial Electronic Communication Fund, fund 1345, fiscal year
2017, organization 1300, in the amount of $1,000,000 from the Attorney General,
Consumer Protection Recovery Fund, fund 1509, fiscal year 2017, organization
1500, in the amount of $2,000,000 from the Department of Administration, Board
of Risk and Insurance Management, Premium Tax Savings Fund, fund 2367, fiscal year
2017, organization 0218, in the amount of $110,467.62 from the Department of
Administration, Capitol Complex Parking Garage Fund, fund 2461, fiscal year
2017, organization 0211, in the amount of $184,848.07 from the Department of
Environmental Protection, Dam Safety Rehabilitation Fund, fund 3025, fiscal
year 2017, organization 0313, in the amount of $500,000 from the Department of
Health and Human Resources, Health Care Authority Fund, fund 5375, fiscal year
2017, organization 0507 and in the amount of $4,000,000 from the Public Service
Commission, Public Service Commission Fund, fund 8623, fiscal year 2017,
organization 0926.?
??????????????? The bill, as amended by the Senate, was
then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 558),
and there were--yeas 91, nays 3, absent and not voting 6, with the nays and
absent and not voting being as follows:
??????????? Nays: Gearheart, Hicks and Marcum.
??????????? Absent and Not Voting: Blair,
Hollen, Kelly, Robinson, Rodighiero and Upson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2801) passed.
??????????? Delegate
Cowles moved that the bill take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 559), and there
were--yeas 90, nays 3, absent and not voting 7, with the nays and absent and
not voting being as follows:
??????????? Nays: Folk, Hicks and McGeehan.
??????????? Absent and Not Voting: Blair,
Hollen, Kelly, R. Miller, Robinson, Rodighiero and Upson.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2801) takes effect from its passage.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com. Sub. for H. B. 3030, Relating to appeals as a matter of
right in the West Virginia Supreme Court of Appeals.
??????????? On motion of Delegate Cowles, the
House of Delegates refused to concur in the following Senate amendments and
requested the Senate to recede therefrom.
On
page one, by striking out everything after the enacting clause and inserting in
lieu thereof the following:
?That
?17C-5A-2 of the Code of West Virginia, 1931, as amended, be amended and
reenacted; and that ?58-5-1 of said code be amended and reenacted, all to read
as follows:
CHAPTER
17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE
5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR
DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
?17C‑5A‑2. Hearing; revocation;
review.
(a) Written
objections to an order of revocation or suspension under the provisions of
section one of this article or section seven, article five of this chapter
shall be filed with the Office of Administrative Hearings. Upon the receipt of
an objection, the Office of Administrative Hearings shall notify the
Commissioner of the Division of Motor Vehicles, who shall stay the imposition
of the period of revocation or suspension and afford the person an opportunity
to be heard by the Office of Administrative Hearings. The written objection
must be filed with Office of Administrative Hearings in person, by registered
or certified mail, return receipt requested, or by facsimile transmission or
electronic mail within thirty calendar days after receipt of a copy of the
order of revocation or suspension or no hearing will be granted: Provided, That
a successful transmittal sheet shall be necessary for proof of written
objection in the case of filing by fax. The hearing shall be before a hearing
examiner employed by the Office of Administrative Hearings who shall rule on
evidentiary issues. The West Virginia Rules of Evidence shall apply to all
proceedings before the hearing examiner. Upon consideration of the designated
record, the hearing examiner shall, based on the determination of the facts of
the case and applicable law, render a decision affirming, reversing or
modifying the action protested. The decision shall contain findings of fact and
conclusions of law and shall be provided to all parties by registered or
certified mail, return receipt requested, or with a party?s written consent, by
facsimile or electronic mail.
(b) The hearing
shall be held at an office of the Division of Motor Vehicles suitable for
hearing purposes located in or near the county in which the arrest was made in
this state or at some other suitable place in the county in which the arrest
was made if an office of the division is not available. At the discretion of
the Office of Administrative Hearings, the hearing may also be held at an
office of the Office of Administrative Hearings located in or near the county
in which the arrest was made in this state. The Office of Administrative
Hearings shall send a notice of hearing to the person whose driving privileges
are at issue and the person?s legal counsel if the person is represented by
legal counsel, by regular mail, or with the written consent of the person whose
driving privileges are at issue or their legal counsel, by facsimile or
electronic mail. The Office of Administrative Hearings shall also send a notice
of hearing by regular mail, facsimile or electronic mail to the Division of
Motor Vehicles, and the Attorney General?s Office, if the Attorney General has
filed a notice of appearance of counsel on behalf of the Division of Motor
Vehicles.
(c) (1) Any
hearing shall be held within one hundred eighty days after the date upon which
the Office of Administrative Hearings received the timely written objection
unless there is a postponement or continuance.
(2) The Office of
Administrative Hearings may postpone or continue any hearing on its own motion
or upon application by the party whose license is at issue in that hearing or
by the commissioner for good cause shown.
(3) The Office of
Administrative Hearings may issue subpoenas commanding the appearance of
witnesses and subpoenas duces tecum commanding the submission of documents,
items or other things. Subpoenas duces tecum shall be returnable on the date of
the next scheduled hearing unless otherwise specified. The Office of Administrative
hearings shall issue subpoenas and subpoenas duces tecum at the request of a
party or the party?s legal representative. The party requesting the subpoena
shall be responsible for service of the subpoena upon the appropriate
individual. Every subpoena or subpoena duces tecum shall be served at least
five days before the return date thereof, either by personal service made by a
person over eighteen years of age or by registered or certified mail, return
receipt requested, and received by the party responsible for serving the
subpoena or subpoena duces tecum: Provided, That the Division of Motor
Vehicles may serve subpoenas to law‑enforcement officers through
electronic mail to the department of his or her employer. If a person does not
obey the subpoena or fails to appear, the party who issued the subpoena to the
person may petition the circuit court wherein the action lies for enforcement
of the subpoena.
(d) Law‑enforcement
officers shall be compensated for the time expended in their travel and appearance
before the Office of Administrative Hearings 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.
(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.
(f) In the case
of a hearing 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
Office of Administrative Hearings shall make specific findings as to: (1)
Whether the 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 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: Provided, That this element shall be
waived in cases where no arrest occurred due to driver incapacitation; (3)
whether the person committed an offense involving driving under the influence
of alcohol, controlled substances or drugs; and (4) whether the tests, if any,
were administered in accordance with the provisions of this article and article
five of this chapter.
(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 Office of Administrative
Hearings also finds by a preponderance of the evidence that the person when
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 Office of
Administrative Hearings 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 person?s
license has previously been suspended or revoked 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) 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 Office of Administrative
Hearings also finds by a preponderance of the evidence that the person when
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 person?s license has previously been suspended or revoked 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) 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 Office of Administrative
Hearings also finds by a preponderance of the evidence that the person when
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 license has previously been
suspended or revoked 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
person?s license has previously been suspended or revoked 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) If the Office
of Administrative Hearings finds by a preponderance of the evidence that the
person did drive a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person?s blood of eight hundredths of one percent
or more, by weight, but less than fifteen hundredths of one percent or more, by
weight, or finds that the person knowingly permitted the persons vehicle to be
driven by another person who was under the influence of alcohol, controlled
substances or drugs, or knowingly permitted the person?s vehicle to be driven
by another person who had an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, the commissioner shall revoke the
person?s license for a period of six months or a period of fifteen days with an
additional one hundred and twenty days of participation in the Motor Vehicle
Alcohol Test and Lock Program in accordance with the provisions of section
three‑a of this article: Provided, That any period of
participation in the Motor Vehicle Alcohol Test and Lock Program that has been
imposed by a court pursuant to section two‑b, article five of this
chapter shall be credited against any period of participation imposed by the
commissioner: Provided, however,
That a person whose license is revoked for driving while under the influence of
drugs is not eligible to participate in the Motor Vehicle Alcohol Test and Lock
Program: Provided, further,
That if the person?s license has previously been suspended or revoked 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: And provided further, That if the person?s license has previously
been suspended or revoked 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 Office of Administrative Hearings also finds by a
preponderance of the evidence that the person did drive a motor vehicle while
having an alcohol concentration in the person?s blood of fifteen hundredths of
one percent or more, by weight, the commissioner shall revoke the person?s
license for a period of forty‑five days with an additional two hundred
and seventy days of participation in the Motor Vehicle Alcohol Test and Lock
Program in accordance with the provisions of section three‑a, article
five‑a, chapter seventeen‑c of this code: Provided, That if
the person?s license has previously been suspended or revoked 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 person?s license has previously
been 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 person?s license has previously been suspended or revoked 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 person?s license has previously
been suspended or revoked 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) 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 Office of Administrative Hearings
also finds by a preponderance of the evidence that the person when 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 Office of
Administrative Hearings 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
person?s license has previously been suspended or revoked 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.
(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 Office of Administrative Hearings
also finds by a preponderance of the evidence that the person when 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 Office of Administrative Hearings 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 person?s license has previously been
suspended or revoked 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
person?s license has previously been suspended or revoked 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) If the Office
of Administrative Hearings 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 person?s license has previously been
suspended or revoked 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.
(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 Office of Administrative
Hearings also finds by a preponderance of the evidence that the person when
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 person?s license
has previously been suspended or revoked 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 person?s license has previously been suspended or
revoked 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.
(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.
(q) In the case
of a hearing in which a person is accused of refusing to submit to a designated
secondary test, the Office of Administrative Hearings 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 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: Provided, That this element shall be waived in cases
where no arrest occurred due to driver incapacitation; (3) whether the person
committed an offense relating to driving a motor vehicle in this state while
under the influence of alcohol, controlled substances or drugs; (4) 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 (5) 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
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.
(r) If the Office
of Administrative Hearings finds by a preponderance of the evidence that: (1)
The 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) whether the person was lawfully placed
under arrest for 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: Provided, That this element
shall be waived in cases where no arrest occurred due to driver incapacitation;
(3) the person committed an offense relating to driving a motor vehicle in this
state while under the influence of alcohol, controlled substances or drugs; (4)
the person refused to submit to the secondary test finally designated in the
manner provided in section four, article five of this chapter; and (5) 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
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. 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.
(s) If the Office
of Administrative Hearings finds to the contrary with respect to the above
issues, it shall rescind or modify the commissioner?s order and, in the case of
modification, the commissioner 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 Office of Administrative Hearings? final
order containing its findings of fact and conclusions of law made and entered
following the hearing shall be served upon the person whose license is at issue
or upon the person?s legal counsel if the person is represented by legal
counsel by registered or certified mail, return receipt requested, or by
facsimile or by electronic mail if available. The final order shall be served
upon the commissioner by electronic mail. During the pendency of any hearing,
the revocation of the person?s license to operate a motor vehicle in this state
shall be stayed.
A person whose
license is at issue and the commissioner shall be entitled to judicial review
as set forth in chapter twenty‑nine‑a of this code. Neither the
commissioner nor the Office of Administrative Hearings may 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. The Office of Administrative Hearings may
not be made a party to an appeal. The party filing the appeal shall pay the
Office of Administrative Hearings for the production and transmission of the
certified file copy and the hearing transcript to the court. Notwithstanding
the provisions of section four, article five of said chapter, the Office of
Administrative Hearings 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. Circuit clerk shall provide a copy of the circuit court?s final
order on the appeal to the Office of Administrative Hearings by regular mail,
by facsimile, or by electronic mail if available.
(t) Any person
whose license is at issue and the commissioner shall be entitled to appeal such
decision as a matter of right by requesting such appeal within thirty days
after the date upon which he or she received notice of the final order or
written decision of the agency. Such appeal shall be made to the circuit court
in the county which the arrest was made. Such hearing on appeal before the
circuit court shall be a trial de novo. The Office of Administrative Hearings
may not be made a party to an appeal. During any appeal filed pursuant to this
subsection, the order revoking or suspending the person?s driver?s license
shall be stayed.
(t) (u) 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.
(u) (v) 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 the funds to the Commission on Drunk Driving Prevention.
CHAPTER
58. APPEAL AND ERROR.
ARTICLE
5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
?58-5-1.
Appeal as a matter of right; when appeal lies.
(a)
All appeals shall be afforded a full and meaningful review by the Supreme Court
of Appeals, and a written decision on the merits shall be issued, as a matter
of right.
(b) A party to a civil action
may appeal to the Supreme Court of Appeals from a final judgment of any circuit
court or from an order of any circuit court constituting a final judgment as to
one or more but fewer than all claims or parties upon an express determination
by the circuit court that there is no just reason for delay and upon an express
direction for the entry of judgment as to such claims or parties.
(c) The defendant in a
criminal action may appeal to the Supreme Court of Appeals from a final
judgment of any circuit court in which there has been a conviction or which
affirms a conviction obtained in an inferior court.?
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 3030 ? ?A Bill to amend and reenact
?17C-5A-2 of the Code of West Virginia, 1931, as amended; and to amend and
reenact ?58-5-1 of said code, all relating to appeals as a matter of right;
providing that parties to decisions of the Office of Administrative Hearings
shall be entitled to appeal such decisions as a matter of right; setting time
frame for requesting such appeal; specifying court to which appeal is to be
made; requiring appeal before circuit court to be trial de novo; specifying
that Office of Administrative Hearings is not to be made party to appeal;
providing for stay of driver?s license revocation or suspension pending appeal;
and providing that all appeals in the West Virginia Supreme Court of Appeals
shall be afforded a full and meaningful review and a written decision on the
merits.?
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect from passage, a bill
of the House of Delegates, as follows:
??????????? H.
B. 3103, Making a supplementary appropriation to the Department of Health
and Human Resources.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
On
page two, section one, line fourteen, by striking out ?2? and inserting in lieu
thereof ?3?.
On
page two, section one, line fifteen, by striking out ?8? and inserting in lieu
thereof ?10?.
And,
On
page three, section one, line thirteen, by striking out ?17a? and inserting
lieu thereof ?23a?.
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 560),
and there were--yeas 94, nays none, absent and not voting 6, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Blair,
Hollen, Kelly, Robinson, Rodighiero and Upson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (H. B. 3103) passed.
??????????? Delegate
Cowles moved that the bill take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 561), and there
were--yeas 94, nays none, absent and not voting 6, with the absent and not
voting being as follows:
??????????? Absent and Not Voting: Blair,
Hollen, Kelly, Robinson, Rodighiero and Upson.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (H. B. 3103) takes effect from its passage.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced concurrence
by the Senate in the amendment of the House of Delegates, with further
amendment, and the passage, of
??????????? Com. Sub. for S. B. 134, Authorizing Bureau of Commerce to promulgate legislative
rules.
??????????? Delegate Cowles moved that the House
of Delegates concur in the following amendment of the bill by the Senate:
??????????? On page one, by striking out the
article heading and inserting in lieu thereof a new article heading, to read as
follows:
?ARTICLE 10.
AUTHORIZATION FOR DEPARTMENT OF COMMERCE TO PROMULGATE LEGISLATIVE RULES.?
??????????? And,
??????????? On page two, section three, by
striking out the words ?The legislative rule effective on July 1, 2014,
authorized under the authority of section four, article six, chapter
twenty-two-a of this code, relating to the Board of Coal Mine Health and Safety
(rules governing proximity detection systems and haulage safety generally, 36
CSR 57), is authorized, with the amendment set forth below:? and inserting in
lieu thereof the following: The Legislature directs the Board of Coal Mine Health
and Safety, pursuant to the authority given to the board in section four,
article six, chapter twenty-two-a of this code, to promulgate the legislative
rule filed in the State Register by the Board of Coal Mine Health and Safety on
July 1, 2014, relating to rules governing proximity detection systems and
haulage safety generally, (36 CSR 57), with the amendment set forth below?
followed by a colon.
And,
By
amending the title of the bill to read as follows:
Com. Sub. for S. B. 134 ? ?A Bill to amend and reenact
?64-10-1, ?64-10-2 and ?64-10-3 of the Code of West Virginia, 1931, as amended,
all relating to authorizing certain Department of Commerce legislative rules;
authorizing certain agencies to promulgate certain legislative rules as
presented to the Legislative Rule-Making Review Committee; authorizing certain
agencies to promulgate certain legislative rules with various modifications
presented to and recommended by the Legislative Rule-Making Review Committee;
repealing certain legislative rules promulgated by certain agencies and boards
under the Department of Commerce which are no longer authorized or are
obsolete; directing the promulgation rules by certain agencies and boards under
the Department of Commerce; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to the point system for the revocation
of hunting ? repeal; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to revocation of hunting and fishing
licenses; authorizing the Division of Natural Resources to promulgate a
legislative rule relating to special waterfowl hunting; authorizing the
Division of Natural Resources to promulgate a legislative rule relating to the
commercial sale of wildlife; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to miscellaneous permits and licenses;
repealing the Division of Natural Resources legislative rule relating to litter
control grant program; authorizing the Office of Miners? Health, Safety and
Training to promulgate a legislative rule relating to certification,
recertification and training of EMT-Miners and the certification of EMT-M
instructors; and directing the Board of Coal Mine Health and Safety to
promulgate a legislative rule relating to rules governing proximity detection
systems and haulage safety generally.?
??????????? The
question being on the passage of the bill, the yeas and nays were taken (Roll No. 562), and there were--yeas 93,
nays 1, absent and not voting 6, with the nays and absent and not voting being
as follows:
??????????? Nays: Walters.
??????????? Absent and Not Voting: Blair,
Hollen, Kelly, Robinson, Rodighiero and Upson.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 134) passed.
??????????? Delegate Cowles moved that the bill
take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 563), and there
were--yeas 94, nays none, absent and not voting 6, with the absent and not
voting being as follows:
??????????? Absent and Not Voting: Blair,
Hollen, Kelly, Robinson, Rodighiero and Upson.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 134) takes effect from its passage.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the House of Delegates amendment, with a title amendment, and
the passage, as amended, of
??????????? Com.
Sub. for S. B. 441, Establishing Municipal Home Rule Pilot Program.
??????????? On motion of Delegate Cowles, the House concurred
in the following amendment to the title of the bill by the Senate:
Com. Sub. for S. B. 441 ?
?A Bill to amend and reenact ?8-1-5a of the Code of West Virginia, 1931, as
amended, relating to municipal home rule; establishing the Municipal Home Rule
Pilot Program as a permanent program identified as the Municipal Home Rule
Program; providing that any ordinance, act, resolution, rule or regulation
enacted pursuant to the Municipal Home Rule Pilot Program shall continue until
repealed; clarifying the authority of the Municipal Home Rule Board; allowing
all municipalities to participate in the Municipal Home Rule Program; requiring
certain notice prior to passing of an ordinance; prohibiting municipalities
participating in the Municipal Home Rule Program from passing an ordinance,
act, resolution, rule or regulation that is contrary to certain laws governing
the professional licensing or certification of public employees; providing for
petition procedures to protest enacted or amended ordinances; requiring
ratification of certain ordinances by the voters in a municipal election; and
eliminating the automatic termination of the Municipal Home Rule Pilot Program
on July 1, 2019.?
The
bill, as amended by the Senate, was then put upon its passage.
??????????? The question being on the passage of
the bill, the yeas and nays were taken (Roll
No. 564), and there were--yeas 88, nays 2, absent and not voting 10, with
the nays and absent and not voting being as follows:
??????????? Nays: Folk and McGeehan.
??????????? Absent and Not Voting: Blair, G.
Foster, Hanshaw, Hollen, Kelly, R. Miller, Robinson, Rodighiero, Sobonya and
Upson.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 441) passed.
??????????? On motion of Delegate Cowles, the
House then reconsidered the vote on the passage of the bill.
Delegate Howell requested to be excused
from voting on the passage of Com. Sub. for S. B. 441 under the provisions of
House Rule 49.
??????????? The Speaker replied that Delegate Howell
may exhibit direct personal or pecuniary interest therein and not as a member
of a class of persons, and excused the Gentleman from voting.
??????????? The question being on the passage of
the bill, the yeas and nays were taken (Roll
No. 565), and there were--yeas 90, nays 3, excused 1, absent and not voting
6, with the nays, excused and absent and voting being as follows:
??????????? Nays: Folk, McGeehan and Sobonya.
??????????? Excused: Howell.
??????????? Absent and Not Voting: Blair, G.
Foster, Hanshaw, Robinson, Rodighiero and Upson.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 441) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence by the Senate in the amendment of the House of Delegates, with
further amendment, and the adoption, as amended, of
??????????? Com.
Sub. for S. J. R. 6, Roads to Prosperity Amendment of 2017.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the joint resolution by the Senate:
On
page one, following the Resolved section, by striking out the remainder of the
resolution and inserting in lieu thereof the following:
?Roads to
Prosperity Amendment of 2017.
(a)
The Legislature shall have power to authorize the issuing and selling of state
bonds not exceeding in the aggregate $1.6 billion. The proceeds of said bonds
are hereby authorized to be issued and sold over a four-year period in the
following amounts:
(1)
July 1, 2017, an amount not to exceed $800 million;
(2)
July 1, 2018, an amount not to exceed $400 million;
(3)
July 1, 2019, an amount not to exceed $200 million; and
(4)
July 1, 2020, an amount not to exceed $200 million.
Any
bonds not issued under the provisions of subdivisions (1) through (3),
inclusive, of this subsection may be carried forward and issued in any
subsequent year before July 1, 2021.
(b)
The proceeds of the bonds shall be used and appropriated for the following
purposes:
(1)
Matching available federal funds for highway and bridge construction in this
state; and
(2)
General highway and secondary road and bridge construction or improvements in
each of the fifty-five counties.
(c)
When a bond issue as aforesaid is authorized, the Legislature shall at the same
time provide for the collection of an annual state tax which shall be in a
sufficient amount to pay the interest on such bonds and the principal thereof
as such may accrue within and not exceeding twenty-five years, Such taxes shall
be levied in any year only to the extent that the moneys in the state road fund
irrevocably set aside and appropriated for and applied to the payment of the
interest on and the principal of said bonds becoming due and payable in such
year are insufficient therefor. Any interest that accrues on the issued bonds
prior to payment shall only be used for the purposes of the bonds.
Resolved
further,
That in accordance with the provisions of article eleven, chapter three of the
Code of West Virginia, 1931, as amended, such proposed amendment is hereby
numbered ?Amendment No. 1? and designated as the ?Roads to Prosperity Amendment
of 2017? and the purpose of the proposed amendment is summarized as follows:
?To provide for the improvement and construction of safe roads in the state by
the issuance of bonds not to exceed $1.6 billion in the aggregate to be paid
for from the State Road Fund and the collection of annual state taxes as
provided by the Legislature by general law.?
??????????? On the motion to concur, the yeas
and nays were demanded, which demand was sustained.
??????????? The yeas and nays having been
ordered, they were taken (Roll No. 566),
and there were--yeas 76, nays 20, absent and not voting 4, with the nays and
absent and not voting being as follows:
??????????? Nays: Butler, Deem, Ellington, Fast,
Folk, N. Foster, Frich, Gearheart, Hamrick, Hill, Howell, Martin, McGeehan,
Moore, Overington, Paynter, Sobonya, Storch, Summers and Wilson.
??????????? Absent and Not Voting: Atkinson, G.
Foster, Hanshaw and Williams.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the motion to concur was
adopted.
??????????? The resolution, as amended by the
House, and further amended by the Senate, was then put upon its adoption.
??????????? On the adoption of the resolution,
the yeas and nays were taken (Roll No.
567), and there were--yeas 84, nays 11, absent and not voting 5, with the
nays and absent and not voting being as follows:
??????????? Yeas:? Ambler, Anderson, Arvon, Baldwin, Barrett,
Bates, Blair, Boggs, Brewer, Butler, Byrd, Canestraro, Capito, Caputo, Cooper,
Cowles, Dean, Diserio, Eldridge, Ellington, Espinosa, A. Evans, E. Evans, Fast,
Ferro, Fleischauer, Fluharty, N. Foster, Frich, Hamilton, Hamrick, Harshbarger,
Hartman, Hicks, Higginbotham, Hollen, Hornbuckle, Householder, Howell,
Iaquinta, Isner, Kelly, Lane, Lewis, Longstreth, Love, Lovejoy, Lynch, Marcum,
Maynard, Miley, C. Miller, R. Miller, Moore, Moye, Nelson, O?Neal, Overington,
Pethtel, Phillips, Pushkin, Pyles, Queen, Robinson, Rodighiero, Rohrbach, C.
Romine, R. Romine, Rowan, Rowe, Shott, Sobonya, Sponaugle, Statler, Summers,
Sypolt, Thompson, Upson, Wagner, Ward, Westfall, White, Zatezalo and Mr.
Speaker, Mr. Armstead.
??????????? Nays: Deem, Folk, Gearheart, Hill,
Kessinger, Martin, McGeehan, Paynter, Storch, Walters and Wilson.
??????????? Absent and Not Voting: Atkinson,
Criss, G. Foster, Hanshaw and Williams.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the resolution (Com. Sub. for S. J. R. 6) adopted, as follows:
??????????? Com.
Sub. for S. J. R. 6 ? ?Proposing an amendment to the Constitution of the
State of West Virginia,
Resolved by the Legislature
of West Virginia, two thirds of the members elected to each house agreeing
thereto:
That
the question of ratification or rejection of an amendment to the Constitution
of the State of West Virginia be submitted to the voters of the state at a
special election to be held at a date set by the Governor in 2017 and
proclaimed in accordance with section three, article eleven, chapter three of
the Code of West Virginia, which proposed amendment is to read as follows:
Roads to Prosperity Amendment of 2017.
(a)
The Legislature shall have power to authorize the issuing and selling of state
bonds not exceeding in the aggregate $1.6 billion dollars. The proceeds of said
bonds are hereby authorized to be issued and sold over a four-year period in
the following amounts:
(1)
July 1, 2018, an amount not to exceed $800 million;
(2)
July 1, 2019, an amount not to exceed $400 million;
(3)
July 1, 2020, an amount not to exceed $200 million; and
(4)
July 1, 2021, an amount not to exceed $200 million.
Any
bonds not issued under the provisions of subdivisions (1) through (3),
inclusive, of this subsection may be carried forward and issued in any
subsequent year before July 1, 2022.
(b)
The proceeds of the bonds shall be used and appropriated for the following
purposes:
(1)
Matching available federal funds for highway and bridge construction in this
state; and
(2)
General highway and secondary road and bridge construction or improvements in
each of the fifty-five counties.
(c)
Any interest that accrues on the issued bonds prior to payment shall only be
used for the purposes of the bonds.
Resolved
further,
That in accordance with the provisions of article eleven, chapter three of the
Code of West Virginia, 1931, as amended, such proposed amendment is hereby
numbered ?Amendment No. 1? and designated as the ?
??????????? Delegate Cowles moved that the joint
resolution take effect from its passage.
??????????? Delegate Cowles then asked and
obtained unanimous consent that the motion be withdrawn.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Conference Committee Report Availability
??????????? At 7:35 p.m., the Clerk
announced availability in his office of the reports of the Committee of
Conference on Com. Sub. for H. B. 2329, Prohibiting the production, manufacture
or possession of fentanyl, Com. Sub. for H. B. 2579, Increasing the penalties
for transporting controlled substances, and Com. Sub. for H. B. 2585, Creating
felony crime of conducting financial transactions involving proceeds of
criminal activity.
Conference
Committee Report
Delegate
Walters, from the Committee of Conference on matters of disagreement between
the two houses, as to
Com.
Sub. for H. B. 2721, Removing the cost limitation on
projects completed by the Division of Highways,
Submitted
the following report, which was received:
Your Committee
of Conference on the disagreeing votes of the two houses as to the Senate
amendment to Com. Sub. for H. B. 2721 having met, after full and free
conference, have agreed to recommend and do recommend to their respective
houses, as follows:
That
the Senate recede from its amendment on page four, section five, lines seventy-six
and seventy-seven.
That
the Senate recede from its amendment on page seven, section nine, lines sixty
and sixty-one.
And
And the
House of Delegates agrees to the amendment of the Senate on page eight,
beginning on line sixty-five, by striking out subsection (i).
??????????? And,
That both houses
recede from their positions as to the title of the bill and agree to the same
as follows:
Com. Sub. for H. B. 2721 -
?A Bill to amend and
reenact ?17-27-5 and ?17-27-9 of the Code of West Virginia, 1931, as amended,
all relating to the public-private transportation facilities act; reducing the
cost threshold limitation on projects completed by the Division of Highways
that are eligible for funding from the state road fund; and extending the time
limitation by which agreements must be made.?
??????????????????????????????????????????????????????????????????????????????????? Respectfully
submitted,
??????????? Ron Walters, Chair,????????????????????????????????? ? ????????Greg Boso, Chair,????????????
??????????? Marty Gearheart,??????? ???????????????????????????????????????Chandler Swoope,
??????????? ?
Mick Bates,????????????????????????????????????????????????????
??Glenn Jeffries,
??????????? Conferees on the part????????????????????????? ?????? ???????
Conferees on the part
??????????? ???
of the House of Delegates.????????????
?????? ????????????of the Senate.
??????????? On motion of Delegate Walters, the report of the
Committee of Conference was adopted.
??????????? The
bill, as amended by said report, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 568), and there were--yeas 94, nays none,
absent and not voting 6, with the absent and not voting being as follows:
??????????? Absent and Not Voting: Atkinson,
Criss, Fleischauer, G. Foster, Hanshaw and Williams.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2721) passed.
??????????? Ordered, That the Clerk of the House communicate to the
Senate the action of the House of Delegates and request concurrence therein.
Delegate
Walters, from the Committee of Conference on matters of disagreement between
the two houses, as to
Com.
Sub. for H. B. 2722, Eliminating the financial limitations
on utilizing the design-build program for highway construction,
Submitted
the following report, which was received:
Your Committee
of Conference on the disagreeing votes of the two houses as to the Senate
amendment to Com. Sub. for H. B. 2722 having met, after full and free
conference, have agreed to recommend and do recommend to their respective
houses, as follows:
Both houses
might recede from their respective positions as to the amendment of the Senate
on page one, section two, lines five through twelve, and agree to the same as
follows:
?(b)
The Division of Highways may expend no more than $50 million in each year in the
program: Provided, That if any of the $50 million is unused in one year,
the remaining amount may be applied to the following year?s amount:
Provided, however, That the total aggregate amount to be expended may not
exceed $150 million in any one year: Provided
further, That for fiscal years beginning after June 30, 2017, the Division
of Highways may expend no more than $200 million on any one project: And provided further, That for fiscal
years beginning after June 30, 2017, the Division of Highways may expend no
more than $400 million in each year in the program: And provided further, That for fiscal years beginning after June
30, 2017, if any of the $400 million is unused in any year, the remaining
amount may be applied to the following year?s amount: And provided further,? That
for fiscal years beginning after June 30, 2017, the total aggregate amount to
be expended may not exceed $500 million in any one year: And provided further, That expenditures made for projects that are
necessitated by a declared state of emergency within a county that the Governor
has included in a declaration of emergency are not to be included against the
expenditure limits provided in this subsection.?
That
the Senate recede from its position as to the amendment of the Senate on page
one, section two, line seventeen.
And,
That
both houses recede from their positions as to the title of the bill and agree
to the same as follows:
Com. Sub. for H. B. 2722 - ?A Bill to amend and reenact ?17-2D-2 of the
Code of West Virginia, 1931, as amended, relating to highway construction using
the design-build program; changing maximum amounts that may be expended for
projects using the design-build program for highway construction and making
certain exceptions to expenditure limits.?
??????????????????????????????????????????????????????????????????????? Respectfully
submitted,
??????????? Ronald N. Walters, Chair??????????????????????????? Greg
Boso, Chair
??????????? Marty Gearheart,??????????????????????????????????????? Chandler
Swope,
??????????? Mick Bates,???????????????????????????????????????????????? Glenn Jeffries,
??????????? ?Conferees on the part??????????????????????????????? Conferees on
the part
??????????? ????? of the House of Delegates.?????????????????? ?? of the Senate.
On
motion of Delegate Walters, the report of the Committee of Conference was
adopted.
??????????? The
bill, as amended by said report, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 569),
and there were--yeas 94, nays none, absent and not voting 6, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Atkinson,
Criss, Fleischauer, G. Foster, Hanshaw and Williams.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the bill
(Com. Sub. for H. B. 2722) passed.
??????????? Ordered, That the Clerk of the House communicate to the Senate the action of the
House of Delegates and request concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to recede from its amendment and requested the
House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
??????????? Com.
Sub. for H. B. 2805, Finding and declaring certain claims against the state
and its agencies to be moral obligations of the state.
??????????? The message further announced that
the President of the Senate had appointed as conferees on the part of the
Senate the following:
??????????? Senators Sypolt, Boso and Facemire.
??????????? On motion of Delegate Cowles the House
reconsidered its earlier actions and concurred in the following amendment of
the bill by the Senate:
On
page seven, section one, by striking out paragraph (116).
On
page twenty, section one, by striking out paragraph (466).
On
page twenty-one, section one, by striking out paragraph (480).
And
By
renumbering the remaining paragraphs.
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 570),
and there were--yeas 90, nays 2, absent and not voting 8, with the nays and
absent and not voting being as follows:
??????????? Nays: Anderson and Kelly.
??????????? Absent and Not Voting: Atkinson,
Blair, Criss, Fleischauer, G. Foster, Hanshaw, Upson and Williams.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2805) passed.
??????????? Delegate
Cowles moved that the bill take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 571), and there
were--yeas 91, nays 1, absent and not voting 8, with the nays and absent and
not voting being as follows:
??????????? Nays: Kelly.
??????????? Absent and Not Voting: Atkinson,
Blair, Criss, Fleischauer, G. Foster, Hanshaw, Upson and Williams.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2805) takes effect from its passage.
??????????? Ordered, That the Clerk of the House communicate to the Senate the action of the
House of Delegates.
?Conference Committee Report Availability
??????????? At 7:55 p.m., the Clerk
announced availability in his office of the report of the Committee of
Conference on Com. Sub. for H. B. 2589, Permitting students who are
homeschooled or attend private schools to enroll and take classes at the county?s
vocational school.
Messages from the Senate
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2109, Relating to the West Virginia Land Reuse Agency
Authorization Act.
Conference Committee Report Availability
??????????? At 7:58 p.m., the Clerk
announced availability in his office of the reports of the Committee of
Conference on S. B. 172, Eliminating salary for Water Development Authority
board members.
Messages from the Senate
??????????? The House then resumed consideration
of Com. Sub. for H. B. 2109.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
??????????? On page one, by striking out
everything after the enacting clause and inserting in lieu thereof the
following:
?That ?31-18E-3 and ?31-18E-9 of the Code of
West Virginia, 1931, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 18E. WEST VIRGINIA LAND REUSE AGENCY
AUTHORIZATION ACT.
?31‑18E‑3. Definitions.
As used in this
article:
(1) ?Board? means
the board of directors of a land reuse agency;
(2) ?Deconstruct?
means to attempt to remove salvageable pieces of a housing unit prior to or as
part of demolition or renovation;
(3) ?Financial
institution? means a bank, savings association, operating subsidiary of a bank
or savings association, credit union, association licensed to originate
mortgage loans or an assignee of a mortgage or note originated by such an
institution;
(4) ?Land reuse
agency? means a public body established under this article;
(5) ?Land reuse
jurisdiction? means: (A) A county or municipality in this state; or (B) two or
more municipalities or counties that enter into an intergovernmental
cooperation agreement to establish and maintain a land reuse agency;
(6) ?Municipal
land bank? means a department or agency of a municipality, or an entity
lawfully created by a municipality, engaged in activities designed to address
issues related to vacant, abandoned and tax-delinquent real property, including
but not limited to, the purchase, rehabilitation, improvement or sale of such
properties for the purpose of eliminating blight and returning those properties
to productive use.
(6) (7) ?Municipality? means a
municipality as defined in section two, article one, chapter eight of this
code; and
(7) (8) ?Real property? means all lands,
including improvements and fixtures on them and property of any nature
appurtenant to them or used in connection with them and every estate, interest
and right, legal or equitable, in them, including terms of years and liens by
way of judgment, mortgage or otherwise, and indebtedness secured by the liens.
??31-18E-9. Acquisition of
property.
(a) Title
to be held in its name. ? A land reuse agency or municipal land bank
shall hold in its own name all real property it acquires.
(b) Tax
exemption. ? (1) Except as set forth in subdivision (2) of this subsection,
the real property of a land reuse agency or municipal land bank and its
income and operations are exempt from property tax.
(2)
Subdivision (1) of this subsection does not apply to real property of a land
reuse agency or municipal land bank after the fifth consecutive year in
which the real property is continuously leased to a private third party.
However, real property continues to be exempt from property taxes if it is
leased to a nonprofit or governmental agency at substantially less than fair
market value.
(c) Methods
of acquisition. ? A land reuse agency or municipal land bank may
acquire real property or interests in real property by any means on terms and
conditions and in a manner the land reuse agency considers proper: Provided,
That a land reuse agency or municipal land bank may not acquire any
interest in oil, gas or minerals which have been severed from the realty.
(d) Acquisitions
from municipalities or counties. ? (1) A land reuse agency or municipal
land bank may acquire real property by purchase contracts, lease purchase
agreements, installment sales contracts and land contracts and may accept
transfers from municipalities or counties upon terms and conditions as agreed
to by the land reuse agency or municipal land bank and the municipality
or county.
(2) A
municipality or county may transfer to a land reuse agency or municipal land
bank real property and interests in real property of the municipality or
county on terms and conditions and according to procedures determined by the
municipality or county as long as the real property is located within the
jurisdiction of the land reuse agency or municipal land bank.
(3) An
urban renewal authority, as defined in section four, article eighteen, chapter
sixteen of this code, located within a land reuse jurisdiction established
under this article may, with the consent of the local governing body and
without a redevelopment contract, convey property to the land reuse agency. A
conveyance under this subdivision shall be with fee simple title, free of all
liens and encumbrances.
(e) Maintenance.
? A land reuse agency or municipal land bank shall maintain all of its
real property in accordance with the statutes and ordinances of the jurisdiction
in which the real property is located.
(f) Prohibition.
? (1) Subject to the provisions of subdivision (2) of this subsection, a land
reuse agency or municipal land bank may not own or hold real property
located outside the jurisdictional boundaries of the entities which created the
land reuse agency under subsection (c), section four of this article.
(2) A
land reuse agency or municipal land bank may be granted authority
pursuant to an intergovernmental cooperation agreement with a municipality or county
to manage and maintain real property located within the jurisdiction of the
municipality or county.
(g) Acquisition
of tax delinquent properties. ? (1) Notwithstanding any other
provision of this code to the contrary, if authorized by the land reuse
jurisdiction which created a land reuse agency or municipal land bank or
otherwise by intergovernmental cooperation agreement, a land reuse agency or
municipal land bank may acquire an interest in tax delinquent property
through the provisions of chapter eleven-a of this code. Notwithstanding the
provisions of section eight, article three, chapter eleven-a of this code, if
no person present at the tax sale bids the amount of the taxes, interest and
charges due on any unredeemed tract or lot or undivided interest in real estate
offered for sale, the sheriff shall, prior to certifying the real estate to the
Auditor for disposition pursuant to section forty-four, article three, chapter
eleven-a of this code, provide a list of all of said real estate within a land
reuse or municipal land bank jurisdiction to the land reuse agency or
municipal land bank and the land reuse agency or municipal land bank
shall be given an opportunity to purchase the tax lien and pay the taxes,
interest and charges due for any unredeemed tract or lot or undivided interest
therein as if the land reuse agency or municipal land bank were an
individual who purchased the tax lien at the tax sale.
(2)
Notwithstanding any other provision of this code to the contrary, if authorized
by the land reuse jurisdiction which created a land reuse agency or municipal
land bank or otherwise by intergovernmental cooperation agreement, the land
reuse agency or municipal land bank shall have the right of first refusal to
purchase any tax-delinquent property which is within municipal limits, and has
an assessed value of $25,000 or less or has been condemned: Provided, That the land reuse agency or
municipal land bank satisfies the requirements of subdivision (3) of this
subsection. A list of properties which meet the criteria of this subdivision
shall regularly be compiled by the sheriff of the county, and a land reuse
agency or municipal land bank may purchase any qualifying tax-delinquent
property for an amount equal to the taxes owed and any related fees before such
property is placed for public auction.
(3) When
a land reuse agency or municipal land bank exercises a right of first refusal
in accordance with subdivision (2) of this section, the land reuse agency or
municipal land bank shall, within fifteen days, provide written notice to all
owners of real property that is adjacent to the tax-delinquent property. Any
such property owner shall have a period of 120 days from the receipt of notice,
actual or constructive, to exercise a right to purchase the tax-delinquent
property from the land reuse agency or municipal land bank for an amount equal
to the amount paid for the property by the land reuse agency or municipal land
bank: Provided, That in the event
more than one adjacent land owner desires to purchase the tax-delinquent
property, it shall be sold to the adjacent property owner offering the highest
bid. It is the duty of the adjacent property owner to establish that he or she
is the actual owner of property that is adjacent to the tax-delinquent property
and all state and local taxes and all fees on his or her adjacent property are
current and non-delinquent.
(3)
Effective July 1, 2020, the provisions of subdivisions (2) and (3) of this
subsection shall sunset and have no further force and effect.
(4)
Prior to January 1, 2020, any land reuse agency or municipal land bank which
exercises the authority granted by this subsection may submit to the Joint Committee
on Government and Finance a report on the entity?s activities related to the
purchase of tax-delinquent properties and any benefits realized from the
authority granted by this subsection.?
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2109 - ?A Bill to amend and reenact ?31-18E-3
and ?31-18E-9 of the Code of West Virginia, 1931, as amended, all relating to
the West Virginia Land Reuse Agency Authorization Act; defining the term ?municipal
land band?; including a municipal land bank as an agency that may acquire
property; providing that a land reuse agency or a municipal land bank may have
the right of first refusal to buy certain tax delinquent property for taxes
owed and any related fees before the tax delinquent property is placed for
public auction at tax sales; providing procedures for when a land reuse agency
or municipal land bank exercises a first right of refusal to purchase
tax-delinquent property; requiring county sheriffs to compile a list of
properties meeting certain criteria; granting owners of adjacent real property
a right to purchase a tax delinquent property from a land reuse agency or
municipal land bank, within 120 days of receiving notice, for an amount equal
to the amount paid for the property by the land reuse agency or municipal land
bank; providing a three year sunset provision; and authorizing reporting to the
Legislature.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 572),
and there were--yeas 73, nays 23, absent and not voting 4, with the nays and
absent and not voting being as follows:
??????????? Nays: Arvon, Blair, Butler, Cowles,
Folk, N. Foster, Frich, Gearheart, Hill, Howell, Iaquinta, Kessinger, Martin,
McGeehan, Paynter, Sobonya, Statler, Summers, Sypolt, Thompson, Upson, Wagner
and Wilson.
??????????? Absent and Not Voting: A. Evans,
Fleischauer, G. Foster and Hanshaw.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2109) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2637, Relating to employment of retired teachers and
prospective employable professional personnel in areas of critical need and
shortage.?????????
Conference Committee Report Availability
??????????? At 8:00 p.m., the Clerk announced
availability in his office of the report of the Committee of Conference on Com.
Sub. for S. B. 224, Repealing requirement for employee?s bond for wages and
benefits.
Messages from the Senate
??????????? The House then resumed consideration
of Com. Sub. for H. B. 2637.
??????????? On motion of Delegate Cowles, the House concurred in the following
amendment of the bill by the Senate:
??????????? On page six, section three, lines
one hundred nineteen through one hundred twenty-six, by striking out all of
subdivision (5) and inserting in lieu thereof a new subdivision, designated
subdivision (5), to read as follows:
?(5)
Regular employment status for prospective employable professional personnel may
be obtained only upon recommendation by the superintendent and approval by
the county board following consideration of the qualifications of the candidate
in accordance with the applicable provisions of section seven-a, article
four of this chapter. Upon board approval, prospective employable
professional personnel may be placed into a critical needs position if the job
has been posted at least once in accordance with paragraph (B), subdivision (1)
of this subsection resulting in no qualified applicants. Employment of the
prospective employable professional personnel pursuant to this subsection may
occur without the need for additional postings and without the need for
additional faculty senate involvement other than the initial faculty senate
involvement required in the case of a classroom teaching position pursuant to
section seven-a, article four of this chapter.?
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2637 ? ?A Bill to amend and reenact ?18A-2-3
of the Code of West Virginia, 1931, as amended, relating to employment of
retired teachers and prospective employable professional personnel in areas of
critical need and shortage; including speech pathologists and school nurses in
definition of teacher or substitute teacher for purposes of employment of
retired teachers beyond the post-retirement limit; establishing uniform date
retirement must become effective to determine status of retirement benefits
during employment as critical needs substitute teacher; restating reporting
requirement to legislative committees; extending date for expiration of
provisions related to employment of retired teacher as substitute teach beyond
the post-retirement limit; eliminating requirement that county policy for
employment of prospective employable professional personnel be based on areas
of critical need and shortage identified by state board; requiring posting of
notice of critical need and shortage area positions prior to making offers of
employment and options for posting; limiting employment of prospective
employable professional personnel to certain candidates at job fair who will
commence employment at the next employment term; changing limit on number of
prospective employable professional personnel that may be employed to number
required to fill positions posted; clarifying action required for prospective
employable professional personnel to obtain regular employment status;
clarifying that provisions relating to prospective employable professional
personnel do not prevent filling posted vacancy at any time in accordance with
other provisions; eliminating any requirement for successive postings where
there were no qualified applicants in response to the initial posting;
clarifying that no additional faculty senate involvement is required after
initial faculty senate involvement; and allowing financial incentives for
purposes of recruiting professional personnel in critical needs areas and to
attract professional personnel in a critical need or shortage area.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 573),
and there were--yeas 97, nays none, absent and not voting 3, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Fleischauer,
G. Foster and Hanshaw.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2637) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2708, Relating to a lawful method for a developmentally
disabled person to purchase a base hunting license.
??????????? Delegate Cowles moved that
the House of Delegates concur in the following amendment of the bill by the
Senate:
On
page one, by striking out everything after the enacting clause and inserting in
lieu thereof the following:
?That
?20-2-27, ?20-2-30a, ?20-2-42a, ?20-2-42q, ?20-2-42s and ?20-2-42v of the Code
of West Virginia, as amended, be amended and reenacted; and that said code be
amended by adding thereto a new section, designated ?20-3-3a, to read as
follows:
ARTICLE
2. WILDLIFE RESOURCES.
part
ii.
licenses
and permits.
?20-2-27. Necessity for
license; contact information exempted.
Except
as otherwise provided by law, no resident who has reached his or her fifteenth
birthday and who has not reached his or her sixty-fifth birthday before January
1, 2012, and no nonresident shall at any time take, hunt, pursue, trap for,
kill or chase any wild animals, wild birds, or fish for, take, kill or catch
any fish, amphibians or aquatic life of any kind whatsoever in this state
without first having secured a license or permit and then only during the
respective open seasons, except that a nonresident who has not reached his or
her fifteenth birthday may fish for, take, kill or catch any fish, amphibians
or aquatic life of any kind whatsoever in this state without first having
secured a license or permit. A person under the age of fifteen years shall not
hunt or chase any wild animals or wild birds upon lands of another unless
accompanied by a licensed adult.
(a)
Except as otherwise provided by law, a resident between the ages of fifteen and
sixty-five, and all nonresidents, may not hunt or take wildlife of any kind in
this state without the requisite license, stamp or permit, and then only during
the respective open seasons. A resident who is fourteen or younger may hunt and
take wildlife without a license if accompanied by a licensed adult. A resident
and nonresident who is fourteen or younger may fish for and take fish,
amphibians or aquatic life without a license.
(b)
Except as otherwise provided by law, A a resident or nonresident member of
any club, organization or association, or persons owning or leasing a game
preserve, or fish preserve, plant or pond in this state shall may
not hunt or fish therein without first securing a the requisite
license, stamp or permit as required by law: Provided,
That resident landowners or their resident children, or bona fide resident
tenants of land, may, without a permit or license, stamp or permit,
hunt and fish on their own land during the respective open seasons in
accordance with laws and rules applying to such hunting and fishing unless
the lands have been designated as a wildlife refuge or preserve.
(c) Licenses, stamps and
permits shall be of the kinds and classes are set forth in this
article and shall be conditioned upon the require payment of the requisite
fees established for the licenses and permits.
(d)
The list of names, addresses and other contact information of all licensees
compiled and maintained by the division as a result of the sale and issuance of
any resident or nonresident license, stamp or permit, as well as any electronic
game information or other personal information obtained pursuant to this
chapter, is exempt from disclosure by the division under the Freedom of
Information Act, chapter twenty-nine-b of this code, and for any other purpose:
Provided, That the records specified
in this section shall be available to all law-enforcement agencies, courts or
other governmental entities authorized to request or receive the records.
?20-2-30a. Certificate of
training; falsifying, altering, forging, counterfeiting or uttering training
certificate; modified certificate of training; penalties.
(a)
Notwithstanding any other provisions of this article, no a base
hunting license may not be issued to any person who was born on or after
January 1, 1975, unless the person submits to the person authorized to issue
hunting licenses a certificate of training as provided in this section or
proof of completion of any course which that promotes as a major
objective safety in the handling of firearms and of bow and arrows and which
course is approved by the hunter education association or the director., or
provides a State of West Virginia A resident or nonresident may
show a hunting license from the previous hunting season that displays a
certification of training, or attests they may attest that a
hunter training course has been completed when purchasing a license or stamp
online.: Provided, That after January 1, 2013, However, a
person may be issued a Class AH, Class AHJ, Class AAH and Class AAHJ apprentice
hunting and trapping license pursuant to the provisions of section forty-two-y
of this article and is exempt from without completing the hunter
training requirements set forth herein.
?(b)(1) The director shall establish a
course in the safe handling of firearms and of bows and arrows, such as the
course approved by the Hunter Education Association. This course shall be given
at least once per year in each county in this state and shall be taught by
instructors certified by the director. In establishing and conducting this
course, the director may cooperate with any reputable association or
organization which promotes as a major objective safety in the handling of
firearms and of bows and arrows.: Provided, That any
(2)
A person
holding a Class A-L or AB-L lifetime resident license obtained prior to his or
her fifteenth birthday shall be required to obtain a certificate of training as
provided in this section before hunting or trapping pursuant to said license.
This course of instruction shall be offered without charge, except for
materials or ammunition consumed. Upon satisfactory completion of the course,
each person instructed in the course shall be issued a certificate of training
for the purposes of complying with the requirements of subsection (a) of this
section. The certificate shall be in the form prescribed by the director and
shall be valid for hunting license application purposes.
?(c) (1) Upon satisfactory completion of this
course, any person whose hunting license has been revoked for a violation of
the provisions of this chapter may petition the director for a reduction of his
or her revocation time. However, under no circumstances may the time be reduced
to less than one year.
(2)
Successful completion of this course shall be required to consider the
reinstatement of a hunting license of any person whose license has been revoked
due to a conviction for negligent shooting of a human being or of livestock
under the provisions of section fifty-seven of this article, and who petitions
the director for an early reinstatement of his or her hunting privileges. Such
a petitioner shall also comply with the other requirements for consideration of
reinstatement contained in section thirty-eight of this article.
(d)
It is unlawful for any person to falsify, alter, forge, counterfeit or utter a
certificate of training. Any person who violates the provisions of this
subsection is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $500 nor more than $1,000, or confined in jail for a period
not to exceed one year, or both fined and imprisoned.
(e)
Nothing herein contained shall This section does not mandate that
any a county school district in the state be is
responsible for implementing hunter safety education programs.
(f)
(1) Notwithstanding the provisions of this section, a base hunting license may
be issued to any person who has a developmental disability whose disability
affects his or her ability to undertake a written test.? The developmentally disabled person must
attend an on-site hunter training course and must successfully complete all
non-written aspects of the course to receive a modified certificate of training
to purchase a base hunting license. For purposes of this section,
"developmentally disabled" has the same meaning as prescribed in
subsection (j), section twenty-eight of this article.
(2)
As part of the application process for a license purchased under a modified
certificate of training, a person with a developmental disability shall present
to the division a written application form furnished by the director and signed
by a licensed physician indicating that the person is:
(A)
Unable to successfully complete a standard written test administered as part of
the hunter training course;
(B)
At all times capable of understanding and following directions given by another
person; and
(C)
Not a danger to himself or herself or others while engaged in hunting with a
firearm.
(3)
A person with a license purchased under a modified certificate of training may
not hunt or trap unless he or she is in possession of all other required
documentation and stamps and is accompanied and directly supervised by an adult
eighteen years of age or older who either possesses a valid West Virginia
hunting license or has the lawful privilege to hunt pursuant to the provisions
of this chapter. For purposes of this subsection, "accompanied and
directly supervised" means that a person maintains a close visual and
verbal contact with, provides adequate direction to and can assume control of
the firearm from the developmentally disabled person.
(4)
Any person violating the provisions of this subsection is guilty of a
misdemeanor and, upon conviction thereof, is subject to the punishment and
penalties prescribed in section nine, article seven of this chapter.
?20-2-42a. Class A resident
hunting and trapping license.
A
Class A license is a resident hunting and trapping license and entitles the
licensee to hunt and trap all legal species of wild animals and wild birds in
all counties of the state, except that the licensee may not hunt deer during
the deer archery, crossbow and muzzleloader seasons, or black bear, wild
turkey or wild boar during the respective seasons, and except as prohibited by
rules of the director or Natural Resources Commission and when additional
licenses, stamps or permits are required. It shall be issued only to residents
or aliens lawfully residing in the United States who have been domiciled
residents of West Virginia for a period of thirty consecutive days or more
immediately prior to the date of their application for a license. The fee for
the license is $18. This is a base license and does not require the purchase of
a prerequisite license to participate in the activities specified in this
section, except as noted.
?20-2-42q. Class RB
resident and Class RRB nonresident archery deer hunting stamp for an additional
deer.
The
director has the authority to issue a Class RB resident and a Class RRB
nonresident archery deer hunting stamp when deemed essential for the proper
management of the wildlife resources. This stamp allows the licensee to hunt
and take an additional deer during the deer archery or crossbow seasons
as designated by the director. The fee for a Class RB stamp is $20 and the fee
for a Class RRB stamp is $35. The director may promulgate rules in accordance
with article three, chapter twenty-nine-a of this code governing the issuance
and use of these stamps. These stamps require that the licensee purchase the
appropriate base license before participating in the activities specified in
this section, except as noted.
?20-2-42s. Class UU nonresident
archery deer hunting stamp.
A
Class UU stamp is a nonresident archery deer hunting stamp and entitles the
licensee to hunt and take deer with a bow during the archery deer season or
with a crossbow in the crossbow deer season in all counties of the state,
except as prohibited by the rules of the director or Natural Resources
Commission. The fee for a Class UU stamp is $30. The stamp, issued in a form
prescribed by the director, shall be in addition to a Class E license. This
stamp requires that the licensee purchase the appropriate base license before
participating in the activities specified in this section, except as noted.
?20-2-42v. Class BG
resident big game stamp.
A
Class BG stamp is a resident big game stamp and entitles the Class A licensee to
hunt deer during the deer archery, crossbow and muzzleloader seasons,
and bear, wild turkey and wild boar during the respective seasons, except as
prohibited by rules of the director or Natural Resources Commission: Provided,
That the licensee possesses all other required permits and/or stamps. The fee
for the stamp is $10. The stamp, issued in a form prescribed by the director,
shall be in addition to a Class A license. This stamp requires that the
licensee purchase the appropriate base license before participating in the
activities specified in this section, except as noted.
ARTICLE
3. FORESTS AND WILDLIFE AREAS.
?20-3-3a. Cabwaylingo Pilot
Project and Special Permit.
(a)
The director shall establish a two-year pilot project permitting all-terrain
vehicles (ATVs) and off-highway recreational vehicles (ORVs) to drive on roads
and trails in Cabwaylingo State Forest, as designated and approved by the
director.? The director may establish
special seasons and designate certain campgrounds and tent sites for ATV and
ORV users in the forest.?
(b)
The director may establish a special permit for purchase by the ATV and ORV
users for road and trail access, and may close any areas, or parts thereof, to
public use. It is unlawful at any time to operate an ATV or ORV on any roads
and trails in Cabwaylingo State Forest without the special permit.
(c)
The provisions of article fifteen of this chapter shall apply to the division,
participants, outfitters and licensees of the Cabwaylingo pilot project, though
ORVs may be permitted.
(d)
At the conclusion of the two-year pilot project, the Legislative Auditor shall
review the pilot project and file a report with the Joint Committee on
Government and Finance.?
And,
By
amending the title of the bill to read as follows:
Com. Sub for H. B. 2708 ? ?A Bill to amend ?20-2-27, ?20-2-30a,
?20-2-42a, ?20-2-42q, ?20-2-42s and ?20-2-42v?
the Code of West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated ?20-3-3a, all relating to licenses and
permits generally; exempting certain contact information for hunting and
fishing license holders from public disclosure with certain exceptions;
clarifying use of crossbows with certain licenses and stamps clarifying license
requirements for disabled person; modifying certificate of training
requirements for disabled person; providing criminal penalties for violations;
creating a special permit for certain vehicles on certain roads and trails in
Cabwaylingo State Forest; permitting the director discretion to establish
special season and other aspects of two-year pilot project; applying the ATV,
UTV and Motorcycle Responsibility Act to the project; requiring Legislative
Auditor to review project and file report; and making technical corrections.?
??????????????? Delegate Cowles then asked and obtained
unanimous consent that the motion to concur in the Senate amendments be
withdrawn.
At 8:14 p.m.,
on motion of Delegate Cowles, the House of Delegates recessed for fifteen
minutes.
* * * * * * *
Evening Session
* * * * * * *
-Continued-
??????????? The House of Delegates was called to
order by the Honorable Tim Armstead, Speaker.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with
amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 2303, Increasing criminal penalties for
littering.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
On
page one, by striking out everything after the enacting section and inserting
in lieu thereof the following:
?ARTICLE 15A. THE A. JAMES MANCHIN
REHABILITATION ENVIRONMENTAL ACTION PLAN.
?22-15A-4. Unlawful
disposal of litter; civil and criminal penalty; litter control fund; evidence;
notice violations; litter receptacle placement; penalty; duty to enforce
violations.
(a) (1) No person shall may place, deposit, dump,
throw or cause to be placed, deposited, dumped or thrown any litter as defined
in section two of this article, in or upon any public or private highway, road,
street or alley; any private property; any public property; or the waters of
the state or within one hundred feet of the waters of this state, except in a
proper litter or other solid waste receptacle.
(2) It is unlawful for any person to place, deposit, dump, throw
or cause to be placed, deposited, dumped or thrown any litter from a motor
vehicle or other conveyance or to perform any act which constitutes a violation
of the motor vehicle laws contained in section fourteen, article fourteen,
chapter seventeen-c of this code.
(3) If any litter is placed, deposited, dumped, discharged,
thrown or caused to be placed, deposited, dumped or thrown from a motor
vehicle, boat, airplane or other conveyance, it is prima facie evidence that
the owner or the operator of the motor vehicle, boat, airplane or other
conveyance intended to violate the provisions of this section.
(4) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed, deposited,
dumped or thrown any litter on his or her private property in an amount not
exceeding fifty pounds in weight is not subject to the criminal provisions of
this section.
(4)(5) Any person who violates the provisions
of this section by placing, depositing, dumping or throwing or causing to be
placed, deposited, dumped or thrown any litter, not collected for commercial
purposes, in an amount not exceeding one hundred pounds in weight or
twenty-seven cubic feet in size, is guilty of a misdemeanor. Upon conviction,
he or she is subject to a fine of not less than $100 nor more than $1,000
$2,500, or in the discretion of the court, sentenced to perform
community service by cleaning up litter from any public highway, road, street,
alley or any other public park or public property, or waters of the state, as
designated by the court, for not less than eight nor more than sixteen hours
one hundred hours, or both.
If any person is convicted of the misdemeanor by placing, depositing, dumping
or throwing litter in the waters of the state, that person shall be fined $500
to no more than $3,000, or in the discretion of the court sentenced to perform
community service by cleaning up litter from any waters of the state, as
designated by the court, for not less than twenty to no more than one hundred
twenty hours, or both.
(5)(6) Any person who violates the provisions
of this section by placing, depositing, dumping or throwing or causing to be
placed, deposited, dumped or thrown any litter, not collected for commercial
purposes, in an amount greater than one hundred pounds in weight or
twenty-seven cubic feet in size, but less than five hundred pounds in weight or
two hundred sixteen cubic feet in size is guilty of a misdemeanor. Upon
conviction he or she is subject to a fine of not less than $1,000 $2,500
nor more than $2,000 $5,000, or in the discretion of the court,
may be sentenced to perform community service by cleaning up litter from any
public highway, road, street, alley or any other public park or public
property, or waters of the state, as designated by the court, for not less than
sixteen nor more than thirty-two hours two hundred hours, or
both. If any person is
convicted of the misdemeanor by placing, depositing, dumping or throwing litter
in the waters of the state, that person shall be fined $3,000 to no more than
$5,500, or in the discretion of the court sentenced to perform community
service by cleaning up litter from any waters of the state, as designated by
the court, for not less than twenty to no more than two hundred twenty hours, or
both.
(6)(7) Any person who violates the provisions
of this section by placing, depositing, dumping or throwing or causing to be
placed, deposited, dumped or thrown any litter in an amount greater than five
hundred pounds in weight or two hundred sixteen cubic feet in size or any
amount which had been collected for commercial purposes is guilty of a
misdemeanor. Upon conviction, the person is subject to a fine shall
be fined not less than $2,500 or not more than $25,000 or confinement in
jail for not more than one year or both. If
any person is convicted of the misdemeanor by placing, depositing, dumping or
throwing litter in the waters of the state, that person shall be fined $3,000
to no more than $30,000, or confinement in jail for not more than one year or
both. In
addition, the violator may be guilty of creating or contributing to an open
dump as defined in section two, article fifteen, chapter twenty-two of this
code and subject to the enforcement provisions of section fifteen of said
that article.
(7)(8) Any person convicted of a second or
subsequent violation of this section is subject to double the authorized range
of fines and community service for the subsection violated.
(8)(9) The sentence of litter clean up shall be
verified by environmental inspectors from the Department of Environmental
Protection. Any defendant receiving the sentence of litter clean up shall
provide, within a time to be set by the court, written acknowledgment from an
environmental inspector that the sentence has been completed and the litter has
been disposed of lawfully.
(9)(10) Any person who has been found by the
court to have willfully failed to comply with the terms of a litter clean up
sentence imposed by the court pursuant to this section is subject to, at the
discretion of the court, double the amount of the original fines and community
service penalties originally ordered by the court.
(10)(11) All law-enforcement agencies, officers
and environmental inspectors shall enforce compliance with this section within
the limits of each agency?s statutory authority.
(12)
No magistrate or municipal court judge may dismiss an action brought under the
provisions of this section without notification to the prosecuting attorney of
that county of his or her intention to do so and affording the prosecuting
attorney an opportunity to be heard.
(11)(13) No portion of this section restricts an
owner, renter or lessee in the lawful use of his or her own private property or
rented or leased property or to prohibit the disposal of any industrial and
other wastes into waters of this state in a manner consistent with the
provisions of article eleven, chapter twenty-two of this code. But if any
owner, renter or lessee, private or otherwise, knowingly permits any such
of these materials or substances to be placed, deposited, dumped or
thrown in such a location that high water or normal drainage
conditions will cause any such these materials or substances to
wash into any waters of the state, it is prima facie evidence that the owner,
renter or lessee intended to violate the provisions of this section:
Provided, That if a landowner, renter or lessee, private or otherwise,
reports any placing, depositing, dumping or throwing of these substances or
materials upon his or her property to the prosecuting attorney, county
commission, the Division of Natural Resources or the Department of
Environmental Protection, the landowner, renter or lessee will be presumed to
not have knowingly permitted the placing, depositing, dumping or throwing of
the materials or substances.
(b) Any indication of ownership found in litter shall be is
prima facie evidence that the person identified violated the provisions of this
section: Provided, That no inference may be drawn solely from the
presence of any logo, trademark, trade name or other similar mass reproduced
things of identifying character appearing on the found litter.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this section shall pay a
civil penalty in the sum of not less than $200 nor more than $1,000 of
$2,000 as costs for clean-up, investigation and prosecution of the case, in
addition to any other court costs that the court is otherwise required by law
to impose upon a convicted person.
The clerk of the circuit court, magistrate court or municipal
court in which these additional costs are imposed shall, on or before the last
day of each month, transmit fifty percent of a civil penalty received pursuant
to this section to the State Treasurer for deposit in the State Treasury to the
credit of a special revenue fund to be known as the Litter Control Fund
which is hereby continued and was transferred to the Department
of Environmental Protection. Expenditures for purposes set forth in this
section are not authorized from collections but are to be made only in
accordance with appropriation and in accordance with the provisions of article
three, chapter twelve of this code and upon fulfillment of the provisions set
forth in article two, chapter five-a of this code. Amounts collected which are
found from time to time to exceed the funds needed for the purposes set forth
in this article may be transferred to other accounts or funds and designated
for other purposes by appropriation of the Legislature.
(d) The remaining fifty percent of each civil penalty collected
pursuant to this section shall be transmitted to the county or regional solid
waste authority in the county where the litter violation occurred. Moneys shall
be expended by the county or regional solid waste authority for the purpose of
litter prevention, clean up and enforcement. The county commission shall
cooperate with the county or regional solid waste authority serving the respective
county to develop a coordinated litter control program pursuant to section
eight, article four, chapter twenty-two-c of this code.
(e) The Commissioner of the Division of Motor Vehicles, upon
registering a motor vehicle or issuing an operator?s or chauffeur?s license,
shall issue to the owner or licensee, as the case may be, a summary of this
section and section fourteen, article fourteen, chapter seventeen-c of the
code.
(f) The Commissioner of the Division of Highways shall cause
appropriate signs to be placed at the state boundary on each primary and
secondary road, and at other locations throughout the state, informing those
entering the state of the maximum penalty provided for disposing of litter in
violation of subsection (a) of this section.
(g) Any state agency or political subdivision that owns, operates
or otherwise controls any public area as may be designated by the
secretary by rule promulgated pursuant to subdivision (8), subsection (a),
section three of this article shall procure and place litter receptacles at its
own expense upon its premises and shall remove and dispose of litter collected
in the litter receptacles. After receiving two written warnings from any
law-enforcement officer or officers to comply with this subsection or the rules
of the secretary, any state agency or political subdivision that fails to place
and maintain the litter receptacles upon its premises in violation of this
subsection or the rules of the secretary shall be fined $30 per day of the
violation.?
And,
By amending the title of the bill to read as follows:
Com.
Sub. for H. B. 2303 ? ?A
Bill to amend and reenact ?22-15A-4 of the Code of West Virginia, 1931, as
amended, relating to the criminal offense of littering, clarifying that no
person may place, deposit, dump throw or cause to be placed, deposited, dumped
or thrown any litter on the private property of another, increasing criminal
penalties for littering in an amount not exceeding one hundred pounds in weight
or twenty-seven cubic feet in size, increasing criminal penalties for littering
in an amount greater than one hundred pounds in weight or twenty-seven cubic
feet in size, but less than five hundred pounds in weight or two hundred
sixteen cubic feet in size, modifying the penalties for littering greater than
five hundred pounds in weight or two hundred sixteen cubic feet in size or any
amount which had been collected for commercial purposes, increasing penalties
for second or subsequent violations for littering in an amount not exceeding
one hundred pounds in weight or twenty-seven cubic feet in size, increasing
penalties for second or subsequent violations for littering in an amount
greater than one hundred pounds in weight or twenty-seven cubic feet in size,
but less than five hundred pounds in weight or two hundred sixteen cubic feet
in size and increasing civil penalties for littering, requiring magistrates or
municipal court judges to consult with prosecuting attorneys before dismissing
charges.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 574),
and there were--yeas 94, nays 4, absent and not voting 2, with the nays and
absent and not voting being as follows:
??????????? Nays: Bates, Folk, McGeehan and
Wilson.
??????????? Absent and Not Voting: Hornbuckle
and Walters.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2303) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with a title amendment, a bill of the House of
Delegates, as follows:
??????????? Com.
Sub. for H. B. 2674, Relating to access to and receipt of certain
information regarding a protected person.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the title of the bill by the Senate:
??????????? Com. Sub. for H. B. 2674 ? ?A Bill to
amend and reenact ?27-3-1 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto two new sections, designated ?44A-3-17 and
?44A-3-18, all relating to the disclosure of certain confidential information
relating to protected persons in guardianship; access to and receipt of certain
information regarding a protected person by certain relatives of the protected
person; authorizing relatives of a protected person to petition the circuit
court for access and information about a protected person; defining ?relative?;
providing a relative may petition the court for an order granting access to a
protected person; setting forth time standards in which to conduct a hearing
after a petition is filed; providing for an emergency hearing under particular
circumstances; providing for service of a petition upon a guardian and setting
time standards for service thereof; providing for the entry of an order by the
court following notice and hearing conducted thereon; providing standards for a
court to observe and implement in issuing a ruling on a petition; providing the
court may award attorney?s fees and costs be paid to a prevailing party;
setting forth particular duties for a guardian to provide relatives notice
about a protected person?s condition and circumstances; authorizing court to
retain jurisdiction; regarding dissemination of information about a protected
person to relatives; and providing a guardian method whereby one may be
relieved of responsibility for providing information regarding a protected
person to a relative.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.?????????
??????????? The question being on the passage of
the bill, the yeas and nays were taken (Roll
No. 575), and there were--yeas 98, nays none, absent and not voting 2, with
the absent and not voting being as follows:
??????????? Absent and Not Voting: Hornbuckle
and Walters.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2674) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2851, Updating fee structure provisions for broker-dealers.
??????????? On motion of Delegate Cowles, the
House concurred in the following amendment of the bill by the Senate:
??????????? On page seven, section three hundred
five, after line seventy-seven, by inserting the following:
??32-4-406. Administration of chapter;
operating fund for securities department.
(a) This chapter
shall be administered by the Auditor of this state and he or she is hereby
designated, and shall be, the commissioner of securities of this state. He or
she or she has the power and authority to appoint or employ such assistants
as are necessary for the administration of this chapter.
(b) The Auditor
shall set up a special operating fund for the securities division in his or her
office. The Auditor shall pay into the fund twenty percent of all fees
collected as provided for in this chapter. If, at the end of any fiscal year,
the balance in the special operating fund exceeds half of the prior
fiscal year?s appropriation, the excess shall be transferred to the General
Revenue Fund. Provided,
That at the end of the 2018 fiscal year, if the balance in the special
operating fund exceeds twenty percent of the gross revenues from the special
operating fund operations, the auditor may first use the fund to repay any transfers
made during the 2017 fiscal year from the Revenue Shortfall Reserve Fund to the
West Virginia Enterprise Resource Planning Board created in section one,
article six-D, chapter twelve of this code. Provided,
however, That at the end of the 2018
fiscal year, after any repayments made out of the special operating fund to the
Revenue Shortfall Reserve Fund, any balance in the special operating fund that
exceeds half of prior year?s appropriation shall be transferred to the General
Revenue Fund.
The special
operating fund shall be used by the Auditor to fund the operation of the
securities division and the general operations of the Auditor?s office. The
special operating fund shall be appropriated by line item by the Legislature.
(c) Moneys
payable for assessments established by section four hundred seven-a of this
article shall be collected by the commissioner and deposited into the General
Revenue Fund.
(d) It is
unlawful for the commissioner or any of his or her officers or employees to use
for personal benefit any information which is filed with or obtained by the
commissioner and which is not made public. No provision of this chapter
authorizes the commissioner or any of his or her officers or employees to
disclose any information except among themselves or when necessary or
appropriate in a proceeding or investigation under this chapter. No provision
of the chapter either creates or derogates from any privilege which exists at
common law or otherwise when documentary or other evidence is sought under a subpoena
directed to the commissioner or any of his or her officers or employees.?
On page one, by striking out the
enacting section and inserting in lieu thereof a new enacting section, to read
as follows:
?That ?32-2-202 of the Code
of West Virginia, 1931, as amended, be amended and reenacted; that ?32-3-305 of
said code be amended and reenacted; that ?32-2-406 of said code be amended and
reenacted; and that ?32-4-413 of said code be amended and reenacted, all to
read as follows? and a colon.
And,
By amending the title of the bill to read as
follows:
Com. Sub. for H. B. 2851 ? ?A Bill to amend and reenact ?32-2-202
of the Code of West Virginia, 1931, as amended; to amend and reenact ?32-3-305
of said code; to amend and reenact ?32-2-406 of said code; and to amend and
reenact ?32-4-413 of said code, all relating to increasing fees assessed by the
Auditor?s Securities Division; and changing the threshold at which money in the
Auditor?s Security Division?s special revenue fund becomes excess and transfers
to the General Revenue Fund for the 2018 fiscal year.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 576),
and there were--yeas 82, nays 17, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Arvon, Barrett, Fast, Folk, N.
Foster, Gearheart, Hill, Householder, Howell, Kessinger, Martin, McGeehan,
Paynter, Rowe, Statler, Upson and Wilson.
??????????? Absent and Not Voting: Marcum.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2851) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 3096, Relating to operation and regulation of certain water
and sewer utilities owned or operated by political subdivisions of the state.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
On
page seven, section nine, lines seventy-five through eighty-seven, by striking
out all of paragraph (G) and inserting in lieu thereof a new paragraph,
designated paragraph (G), to read as follows:
?(G)
The public service district, or a customer aggrieved by the changed rates or
charges who presents to the circuit court a petition signed by at least 750
customers or twenty-five percent of the customers served by the public service
district, whichever is fewer, when dissatisfied by the approval, modification,
or rejection by the county commission of the proposed rates, fees and charges
under the provisions of this subdivision (2) may file a complaint regarding the
rates, fees and charges resulting from the action of, or failure to act by, the
county commission in the circuit court of the county in which the county
commission sits: Provided, That any
complaint or petition filed hereunder shall be filed within thirty days of the
county commission?s final action approving, modifying or rejecting such rates,
fees and charges, or the expiration of the forty-five day period from the
receipt by the county commission, in writing, of the rates, fees and charges
approved by resolution of the board, without final action by the county
commission to approve, modify or reject such rates, fees and charges, and the
circuit court shall resolve said complaint: Provided,
however, That the rates, fees and charges so fixed by the county
commission, or those adopted by the district upon which the county commission
failed to act, shall remain in full force and effect, until set aside, altered
or amended by the circuit court in an order to be followed in the future.?
On
page eighteen, section one, after line one hundred forty-eight, by adding two
new subsections, designated subsections (e) and (d), to read as follows:
?(e)
The commission shall not have jurisdiction of Internet protocol-enabled service
or voice-over Internet protocol-enabled service. As used in this subsection:
(1)
?Internet protocol-enabled service? means any service, capability,
functionality or application provided using Internet protocol, or any successor
protocol, that enables an end user to send or receive a communication in
Internet protocol format, or any successor format, regardless of whether the
communication is voice, data or video.
(2)
?Voice-over Internet protocol service? means any service that:
(i)
Enables real-time two-way voice communications that originate or terminate from
the user?s location using Internet protocol or a successor protocol; and
(ii)
Uses a broadband connection from the user?s location.
(3)
The term ?voice-over Internet protocol service? includes any service that
permits users to receive calls that originate on the public-switched telephone
network and to terminate calls on the public-switched telephone network.
(f)
Notwithstanding any other provisions of this article, the commission shall not
have jurisdiction to review or approve any transaction involving a telephone
company otherwise subject to sections twelve and twelve-a, article two, chapter
twenty-four of this code if all entities involved in the transaction are under
common ownership.?
On
page thirty, section eleven, after line one hundred twenty-seven, by adding a
new subdivision, designated subdivision (8), to read as follows:
(8)
A public service district, or a customer aggrieved by the changed rates or
charges who presents to the circuit court a petition signed by at least 750 or
twenty-five percent of the customers served by the public service district,
whichever is fewer, when dissatisfied by the approval, modification, or
rejection by the county commission of the proposed rates, fees and charges
under the provisions of this subsection (l) may file a complaint regarding the
rates, fees and charges resulting from the action of, or failure to act by, the
county commission in the circuit court of the county in which the county
commission sits: Provided, That any
complaint or petition filed hereunder shall be filed within thirty days of the
county commission?s final action approving, modifying or rejecting such rates,
fees and charges, or the expiration of the 45 day period from the receipt by
the county commission, in writing, of the rates, fees and charges approved by
resolution of the board, without final action by the county commission to
approve, modify or reject such rates, fees and charges, and the circuit court
shall resolve said complaint: Provided,
however, That the rates, fees and charges so fixed by the county commission,
or those adopted by the district upon which the county commission failed to
act, shall remain in full force and effect, until set aside, altered or amended
by the circuit court in an order to be followed in the future.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
??????????? Com.
Sub. for H. B. 3096 ? ?A Bill to repeal ?8-16-19 of the Code of West
Virginia, 1931, as amended; to amend and reenact ?16-13A-8 and ?16-13A-9 of
said code; to amend and reenact ?24-1-1b of said code; to amend and reenact
?24-2-1, ?24-2-3, ?24-2-4b and ?24-2-11 of said code, all relating to the
operation and regulation of utilities and services generally; modifying
procedures and requirements for the operation and regulation of certain water
and sewer utilities owned or operated by political subdivisions of the state;
eliminating reference to appeals to the Public Service Commission from actions
of municipal boards that are not subject to the jurisdiction of the Public
Service Commission; prohibiting Public Service Commission jurisdiction of
Internet protocol-enabled service and voice-over Internet protocol-enabled
service; defining the terms ?Internet protocol-enabled service? and ?Voice-over
Internet protocol service?; limiting Public Service Commission jurisdiction of certain
telephone company transactions; relating to the authority of county commissions
to modify proposed rates for certain water and sewer utilities and providing
for complaints to be filed with the circuit courts pertaining to rates and
charges enacted as proposed,? modified or
rejected by the county commission; eliminating Public Service Commission
authority regarding storm water utilities; providing time limits for the filing
of requests for investigations pertaining to political subdivisions providing
separate or combined water and/or sewer services and having at least four
thousand five hundred customers and annual combined gross revenues of $3
million or more; clarifying the authority of the Public Service Commission to
resolve complaints of customers of water and sewer utilities operated by a
political subdivision of the state having at least four thousand five hundred
customers and annual combined gross revenues of $3 million or more; clarifying
the jurisdiction of the Public Service Commission relating to rates for
municipal water and/or sewer utilities having less than four thousand five
hundred customers or annual combined gross revenues of less than $3 million;
revising the notice and procedure provisions for construction projects for
political subdivisions of this state providing separate or combined water
and/or sewer services and having at least four thousand five hundred customers
and annual combined gross revenues of $3 million or more; and providing
procedures for a public service district or a customer satisfying certain
requirements to file a complaint in circuit court to contest the action or
inaction of a county commission regarding a rate proposals and construction
projects that are not in the ordinary course of business.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 577),
and there were--yeas 95, nays 5, absent and not voting none, with the nays
being as follows:
??????????? Nays: Baldwin, Folk, Love, Sponaugle
and Upson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 3096) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendment, of a concurrent resolution of the
House of Delegates as follows:
??????????? H. C. R. 62,
Webster County Veterans Highway.
??????????? On motion of Delegate Cowles, the House
of Delegates concurred in the following amendment of the resolution by the
Senate:
On
page one, in the third Whereas clause, line eight, by striking out the word
?its? and inserting in lieu thereof the word ?their?.
??????????? The resolution, as amended by the
Senate, was then adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendment, of a concurrent resolution of the
House of Delegates as follows:
??????????? H. C. R. 63,
William B. Burgess Memorial Road.
??????????? On motion of Delegate Cowles, the
House of Delegates concurred in the following amendment of the resolution by
the Senate:
??????????? On page one, in the Resolved clause,
line fourteen, by striking out the word ?William? and inserting in lieu thereof
the words ?U.S. Army PFC William?.
On
page one, in the first Further Resolved clause, line seventeen, by striking out
the word ?William? and inserting in lieu thereof the words ?U.S. Army PFC
William?.
And,
??????????? By amending the title of the
resolution to read as follows:
??????????? H. C. R. 63 ? ?Requesting the Division of
Highways to name a portion of Route
80, known as Wills Creek Road, in Logan County, beginning at latitude
37.730131, longitude -81.873774 and ending at latitude 37.692547, longitude
-81.865702, the ?U.S. Army PFC William B. Burgess Memorial Road?.?
??????????? The resolution, as amended by the
Senate, was then adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendment, of a concurrent resolution of the
House of Delegates as follows:
??????????? Com.
Sub. for H. C. R. 65, Hobert G. ?Hobie? Underwood Memorial Bridge.
??????????? On motion of Delegate Cowles, the
House of Delegates concurred in the following amendment of the resolution by
the Senate:
On page one, in the second Whereas
clause, line eight, after the word ?War? by inserting the word ?II?.
??????????? The resolution, as amended by the
Senate, was then adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendments, of a concurrent resolution of the
House of Delegates as follows:
??????????? H. C. R. 68,
James Earl Gibson Memorial Road.
??????????? On motion of Delegate Cowles, the House
of Delegates concurred in the following amendment of the resolution by the
Senate:
??????????? On
page one, in the Resolved clause, line fifteen, by striking out the word
?James? and inserting in lieu thereof the words ?U.S. Navy PO3 James?.
On
page one, in the first Further Resolved clause, line eighteen, by striking out
the word ?James? and inserting in lieu thereof the words ?U.S. Navy PO3 James?.
And,
??????????? By amending the title of the bill to
read as follows:
??????????? H.
C. R. 68 ? ?Requesting the Division of Highways to name a portion of West
Virginia Route 80, near Bruno, beginning at a point, latitude 37.692547,
longitude -81.865702, and ending at a point, latitude 37.664654, longitude
-81.848732, the ?U.S. Navy PO3 James Earl Gibson Memorial Road?.?
??????????? The resolution, as amended by the
Senate, was then adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendments, of a concurrent resolution of the
House of Delegates as follows:
??????????? H. C. R. 118,
Craddock Brothers Bridge.
??????????? On motion of Delegate Cowles, the
House of Delegates concurred in the following amendment of the resolution by
the Senate:
On
page two, in the tenth Whereas clause, line thirty-four, after the word
?Brothers?, by inserting the word ?Veterans?.
On
page two, in the Resolved clause, line thirty-nine, after the word ?Brothers?,
by inserting the word ?Veterans?.
On
page two, in the first Further Resolved clause, line forty-one, after the word
?Brothers?, by inserting the word ?Veterans?.
And,
??????????? By amending the title of the
resolution to read as follows:
??????????? H.
C. R. 118 ? ?Requesting the Division of Highways name bridge number
07-33-5.34 (07A057) (38.79415, -81.14055), locally known as the Arnoldsburg
Bridge, carrying US 33 over the West Fork of Little Kanawha River in Calhoun
County, the ?Craddock Brothers Veterans Bridge?.?
??????????? The resolution, as amended by the
Senate, was then adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence by the Senate in the amendment of the House of Delegates, with a
title amendment, and the passage, to take effect from passage, as amended, of
??????????? Com.
Sub. for S. B. 116, Authorizing MAPS promulgate legislative rules.
??????????? On motion of Delegate Cowles, the
House of Delegates concurred in the following title amendment to the bill by
the Senate:
Com. Sub. for S. B. 116 ?-
?A Bill to amend and reenact ?64-6-1, ?64-6-2 and ?64-6-3 of the Code of West
Virginia, 1931, as amended, all relating to authorizing certain Department of Military
Affairs and Public Safety legislative rules; authorizing certain agencies to
promulgate certain legislative rules with various modifications presented to
and recommended by the Legislative Rule-Making Review Committee; authorizing
certain agencies to promulgate legislative rules with various amendments
recommended by the legislature; authorizing the Governor?s Committee on Crime,
Delinquency and Correction to promulgate a legislative rule relating to
law-enforcement training and certification standards; authorizing the State
Fire Marshal to promulgate a legislative rule relating to the regulation of
fireworks and related explosive material; and directing the Division of Justice
and Community Services to promulgate a legislative rule relating to the William
R. Laird, IV- second chance driver?s license program.?
??????????? The bill, as amended by the House,
and further amended by the Senate, was then put upon its passage.
??????????? The question being on the passage of
the bill, the yeas and nays were taken (Roll
No. 578), and there were--yeas 99, nays 1, absent and not voting none, with
the nays being as follows:
??????????? Nays: Walters.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 116) passed.
??????????? Delegate Cowles moved that the bill
take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 579), and there
were--yeas 100, nays none, absent and not voting none.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 116) takes effect April 8, 2017.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had refused to concur in the amendment of the House of
Delegates and requested the House to recede from its amendment to
??????????? S.
B. 444, Establishing Court Advanced Technology Subscription Fund.
??????????? On motion of Delegate Cowles, the
House of Delegates receded from its amendments.
??????????? The
question being on the passage of the bill, the yeas and nays were taken taken (Roll No. 580), and there were--yeas
93, nays 7, absent and not voting none, with the nays being as follows:
??????????? Nays: Folk, Gearheart, Howell,
Martin, McGeehan, Paynter and Upson.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (S. B. 444) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence by the Senate in the amendment of the House of Delegates, with
further amendment, and the passage, to take effect from passage, as amended, of
??????????? Com. Sub. for S. B. 630, Establishing Accessibility and Equity in Public Education
Enhancement Act.
??????????? On motion of Delegate Cowles, the
House concurred in the following amendment of the bill by the Senate:
On
page one, after the enacting section, by striking out the article heading.
On
pages one through three, by striking out all of section twenty-five.
On
page seven, section five, line twenty-seven, after the word ?school? and the
period, by striking out the remainder of subsection (e).
On
page one, 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 ?18-5F-1, ?18-5F-2, ?18-5F-3, ?18-5F-4, ?18-5F-5 and ?18-5F-6,
all to read as follows? and a colon.
And,
By
amending the title of the bill to read as follows:
Com. Sub. for S. B. 630 ? ?A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article, designated
?18-5F-1, ?18-5F-2, ?18-5F-3, ?18-5F-4, ?18-5F-5 and ?18-5F-6, all relating to
establishing the Accessibility and Equity in Public Education Enhancement Act;
setting forth legislative findings and purpose; defining terms; allowing a
county board or a multicounty consortium to create a virtual instruction
program for one or more schools serving any composition of grades kindergarten
through twelve by adopting a policy creating the program; allowing the county
board or multicounty consortium after adopting the policy to contract with
virtual school providers; delaying participation of eligible students in grades
kindergarten through five until after the program has been in operation for one
full school year; requiring eligible students to be counted in the net
enrollment of the school district for the purposes of calculating and receiving
state aid, be subject to the same state assessment requirements as other
students in the school district and receive a diploma upon completing the same
coursework required of regular public school students in the district;
exempting, to a limited extent, certain students, parents and school districts
from certain laws and state board policies that pertain to requiring the
student to be in a school building receiving instruction for any set period of
time; providing that a participating eligible student be considered to be
attending a certain school; allowing the eligible student to participate in any
cocurricular and extracurricular activities of the school under the same
participation requirements imposed on traditional students attending the
school; exempting a county board from certain provisions of law or state board
rule to the extent any conflict with the delivery of the program; exempting a
county board from certain online course restrictions; requiring coursework
offered through a program be aligned to certain academic standards; requiring
the assessment results of a student be included in the assessment results of
the school and the school district in which the student is considered to be
enrolled for purposes of accountability; and requiring report to the
Legislative Oversight Commission on Education Accountability on all aspects of
the program.?
??????????? The bill, as amended by the House,
and further amended by the Senate, was then put upon its passage.
??????????? The
question being on the passage of the bill, the yeas and nays were taken (Roll No. 581), and there were--yeas
66, nays 34, absent and not voting none, with the nays being as follows:
??????????? Nays: Anderson, Baldwin, Barrett,
Bates, Boggs, Brewer, Canestraro, Caputo, Diserio, Eldridge, E. Evans, Ferro,
Fleischauer, Hicks, Hornbuckle, Iaquinta, Isner, Kelly, Lewis, Longstreth,
Love, Lovejoy, Lynch, Marcum, R. Miller, Moye, Pethtel, Phillips, Pyles,
Rodighiero, Rohrbach, Sponaugle, Thompson and Williams.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 630) passed.
??????????? Delegate Cowles moved that the bill
take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 582), and there
were--yeas 70, nays 30, absent and not voting none, with the nays being as
follows:
??????????? Nays: Baldwin, Barrett, Bates,
Boggs, Brewer, Canestraro, Caputo, Diserio, Eldridge, E. Evans, Ferro,
Fluharty, Hicks, Iaquinta, Isner, Longstreth, Love, Lovejoy, Lynch, Marcum,
Miley, R. Miller, Moye, Pethtel, Pyles, Rodighiero, Rohrbach, Sponaugle,
Thompson and Williams.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 630) takes effect from its passage.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? Com.
Sub. for H. B. 2708, Relating to a lawful method for a developmentally
disabled person to purchase a base hunting license, was taken up for further
consideration.
??????????? On motion of Delegate Cowles, the House
of Delegates refused to concur in the Senate amendments and requested the
Senate to recede therefrom.
??????????? Ordered, That the Clerk of
the House communicate to the Senate the action of the House of Delegates and
request concurrence therein.
Conference Committee
Report
Delegate Hanshaw, from the Committee of Conference
on matters of disagreement between the two houses, as to
Com.
Sub. for H. B. 2631, Relating to time standards for
disposition of complaint proceedings.
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
That both houses recede from their
respective positions as to the amendment on page
On page two, section five, line sixteen,
after the word ?ruling.? by inserting the following:
?The time period for final ruling shall
be tolled for any delay requested or caused by the respondent or by counsel for
the respondent and in no event shall a complaint proceeding be dismissed for
exceeding the time standards in this section when such overage is the result of
procedural delay or obstructive action by the accused or his or her counsel or
agents.?
That both houses agree to all other
amendments of the Senate.
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:
Com.
Sub. for H. B. 2631 - ?A
Bill to amend and reenact ?30-1-5 of the Code of West Virginia, 1931, as
amended, relating to time standards for disposition of complaint proceedings;
tolling the time periods for delays attributable to the respondent; and
prohibiting complaint proceeding from being dismissed for exceeding time
standards when overage is result of procedural delay or obstructive action by
respondent.?
????? Respectfully
submitted,
Roger Hanshaw, Chair |
Tom Takubo, Chair |
|
Moore
Capito, |
Mike
Maroney, |
|
Rodney
Miller, ?? Conferees on the part of the House ?????? of Delegates. ? |
?? Conferees on the part of
the Senate. |
??????????? On motion of Delegate Hanshaw, the
report of the Committee of Conference was adopted.
??????????? The bill, as amended by said report,
was then put upon its passage.
??????????? On
the passage of the bill, the yeas and nays were taken (Roll No. 583), and there were--yeas 100, nays none, absent and not
voting none.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2631) passed.
??????????? Ordered, That the Clerk of the House communicate to the Senate the action of the
House of Delegates and request concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2001, Relating to ethics and transparency in government.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
On page one, by striking out
everything after the enacting section and inserting in lieu thereof the
following:
?That ?6B-2-1, ?6B-2-2, ?6B-2-2a,
?6B-2-3a, ?6B-2-4, ?6B-2-5, ?6B-2-6 and ?6B-2-10 of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that said code be amended by
adding thereto a new chapter, designated ?6D-1-1, ?6D-1-2, ?6D-1-3 and ?6D-1-4,
all to read as follows:
CHAPTER 6B. PUBLIC
OFFICERS AND EMPLOYEES; ETHICS; CONFLICTS OF INTEREST; FINANCIAL DISCLOSURE.
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES
BEFORE PUBLIC AGENCIES; CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES.
?6B-2-1. West Virginia Ethics Commission created; members;
appointment, term of office and oath; compensation and reimbursement for
expenses; meetings and quorum.
(a) The
West Virginia Ethics Commission is continued. The members of the commission
shall be appointed by the Governor with the advice and consent of the Senate.
(b) No
person may be appointed to the commission or continue to serve as a member of
the commission who:
(1)
Holds elected or appointed office under the government of the United States,
the State of West Virginia or any of its political subdivisions;
(2) Is a
candidate for any political office;
(3) Is
otherwise subject to the provisions of this chapter other than by reason of his
or her appointment to or service on the commission; or
(4)
Holds any political party office or participates in a campaign relating to a
referendum or other ballot issue: Provided, That a member may contribute
to a political campaign.
(c)
Commencing July 1, 2014, the Ethics Commission shall consist of the following
nine members, appointed with staggered terms:
(1) One
member who served as a member of the West Virginia Legislature;
(2) One
member who served as an elected or appointed county official;
(3) One
member who served as an elected or appointed municipal official;
(4) One
member who served as an elected county school board member;
(5) One
member from a rural area; and
(6) Four
citizen members.
(d) Any
Commission member in office on June 30, 2014, who meets one of the categories
for membership set out in subsection (c) of this section, may be reappointed.
No more than five members of the Commission shall be of the same political
party and no more than four two members shall be from the same congressional
state senatorial district.
(e)
After the initial staggered terms, the term of office for a Commission member
is five years. No member shall serve more than two consecutive full or partial
terms. No person may be reappointed to the commission until at least two years
have elapsed after the completion of the second consecutive term. A member may
continue to serve until a successor has been appointed and qualified.
(f) All
appointments shall be made by the Governor in a timely manner so as not to
create a vacancy for longer than sixty days.
(g) Each
member must be a resident of this state during the appointment term.
(h) Five
members of the commission constitutes a quorum.
(i) Each
member of the commission shall take and subscribe to the oath or affirmation
required pursuant to section five, article IV of the Constitution of West
Virginia.
(j) A
member may be removed by the Governor for substantial neglect of duty, gross
misconduct in office or a violation of this chapter, after written notice and
opportunity for reply.
(k) The
commission, as appointed on July 1, 2014, shall meet before August 1, 2014, at
a time and place to be determined by the Governor, who shall designate a member
to preside at that meeting until a chairperson is elected. At the first
meeting, the commission shall elect a chairperson and any other officers as are
necessary. The commission shall within ninety days after the first meeting
adopt rules for its procedures. The commission may use the rules in place on
July 1, 2014, until those rules are amended or revoked.
(l)
Members of the commission shall receive the same compensation and expense
reimbursement as is paid to members of the Legislature for their interim duties
as recommended by the Citizens Legislative Compensation Commission and
authorized by law for each day or portion thereof engaged in the discharge of
official duties: Provided, That to be eligible for compensation and
expense reimbursement, the member must participate in a meeting or adjudicatory
session: Provided, however, That the member is not eligible for expense
reimbursement if he or she does not attend a meeting or adjudicatory session in
person.
(m) The
commission shall appoint an executive director to assist the commission in
carrying out its functions in accordance with commission rules and with
applicable law. The executive director shall be paid a salary fixed by the
commission or as otherwise provided by law. The commission shall appoint and
discharge counsel and employees and shall fix the compensation of employees and
prescribe their duties. Counsel to the commission shall advise the commission
on all legal matters and on the instruction of the commission may commence appropriate
civil actions: Provided, That no counsel shall both advise the
commission and act in a representative capacity in any proceeding.
(n) The
commission may delegate authority to the chairperson or the executive director
to act in the name of the commission between meetings of the commission, except
that the commission shall not delegate the power to hold hearings and determine
violations to the chairperson or the executive director.
(o) The
principal office of the commission shall be in the seat of government, but it
or its designated subcommittees may meet and exercise its power at any other
place in the state. Meetings of the commission shall be public unless:
(1) They
are required to be private by the provisions of this chapter relating to
confidentiality; or
(2) They
involve discussions of commission personnel, planned or ongoing litigation, and
planned or ongoing investigations.
(p)
Meetings of the commission shall be upon the call of the chairperson and may be
conducted by telephonic or other electronic conferencing means: Provided,
That telephone or other electronic conferencing, and voting are not
permitted when the commission is acting as a hearing board under this
article, or when the Probable Cause Review Board meets to receive an oral
response as authorized by this article, members may not participate or vote
by telephonic means: Provided, however,
That participation and voting may be permitted if the member attends and
participates via video conferencing that allows the witness and the member to
observe and communicate with one another. Members shall be given notice of
meetings held by telephone or other electronic conferencing in the same manner
as meetings at which the members are required to attend in person. Telephone or
other electronic conferences shall be electronically recorded and the
recordings shall be retained by the commission in accordance with its record
retention policy.
?6B-2-2. Same ?
General powers and duties.
(a) The
commission shall propose rules for promulgation in accordance with the
provisions of chapter twenty-nine-a of this code, to carry out the purposes of
this article.
(b) The
commission may initiate or receive complaints and make investigations, as
provided in section four of this article, and upon complaint by an individual
of an alleged violation of this article chapter by a public
official or public employee, refer the complaint to the Review Board as
provided in section two-a of this article. Any person charged with a violation
of this chapter is entitled to the administrative hearing process contained in
section four of this article.
(c) The
commission may subpoena witnesses, compel their attendance and testimony,
administer oaths and affirmations, take evidence and require by subpoena the
production of books, papers, records or other evidence needed for the
performance of the commission?s duties or exercise of its powers, including its
duties and powers of investigation.
(d) The
commission shall, in addition to its other duties:
(1)
Prescribe forms for reports, statements, notices and other documents required
by law;
(2)
Prepare and publish manuals and guides explaining the duties of individuals
covered by this law; and giving instructions and public information materials
to facilitate compliance with, and enforcement of, this act; and
(3)
Provide assistance to agencies, officials and employees in administering the provisions
of this act.
(e) The
commission may:
(1)
Prepare reports and studies to advance the purpose of the law;
(2)
Contract for any services which cannot satisfactorily be performed by its
employees;
(3)
Require the Attorney General to provide legal advice without charge to the
commission;
(4)
Employ additional legal counsel;
(5)
Request appropriate agencies of state to provide any professional assistance
the commission may require in the discharge of its duties: Provided,
That the commission shall reimburse any agency other than the Attorney General
the cost of providing assistance; and
(6)
Share otherwise confidential documents, materials or information with
appropriate agencies of state government, provided that the recipient agrees to
maintain the confidentiality and privileged status of the document, material or
information.
?6B-2-2a. Probable Cause Review Board.
(a)
There is hereby established a Probable Cause Review Board that shall conduct hearings
investigations to determine whether there is probable cause to believe
that a violation of the West Virginia Governmental Ethics Act has occurred. and,
if so, to refer that investigation to the Ethics Commission The Review
Board is an autonomous board, not under the direction or control of the Ethics
Commission. The Review Board will review complaints received or initiated by
the Ethics Commission to make a threshold determination of whether probable
cause exists to believe that a violation of the West Virginia Governmental
Ethics Act has occurred.
(b) The Governor,
by and with the advice and consent of the Senate, shall appoint three persons
as members of the Review Board, each of whom shall be a resident and citizen of
the state. Each member of the Review Board shall hold office until his or her
successor has been appointed and qualified. At least one member of the board
must be an attorney licensed by the State of West Virginia and no more than two
members can belong to the same political party. The members of the Review Board
shall be appointed for overlapping terms of two years, except that the original
appointments shall be for terms of one, two and three years, respectively. Any
member whose term expires may be reappointed by the Governor. In the event a
Review Board member is unable to complete his or her term, the Governor shall
appoint a person with similar qualification to complete that term. Each Review
Board member shall receive the same compensation and expense reimbursement as
provided to Ethics Commission members pursuant to section one of this article.
These and all other costs incurred by the Review Board shall be paid from the
budget of the Ethics Commission.
(c) No
person may be appointed to the Review Board or continue to serve as a member of
the Review Board who holds elected or appointed office under the government of
the United States, the State of West Virginia or any of its political
subdivisions, or who is a candidate for any of such offices, or who is a
registered lobbyist, or who is otherwise subject to the provisions of this
chapter other than by reason of his or her appointment to or service on the
Review Board. A Review Board member may contribute to a political campaign, but
no member shall hold any political party office or participate in a campaign
relating to a referendum or other ballot issue.
(d)
Members of the Review Board may recuse themselves from a particular case upon
their own motion, with the approval of the Review Board, and shall recuse
themselves, for good cause shown, upon motion of a party. The remaining members
of the Review Board may, by majority vote, select a temporary member to replace
a recused member: Provided, That the temporary member selected to
replace a recused member shall be a person who meets all requirements for
appointment provided by subsection (c), section two-a of this article, and
whose political affiliation is the same as the recused member.
(e) The
Ethics Commission shall propose, for approval by the Review Board, any
procedural and interpretative rules governing the operation of the Review Board.
The commission shall propose these rules pursuant to article three, chapter
twenty-nine-a of the code.
(f) The
Ethics Commission shall provide staffing and a location for the Review Board to
conduct hearings. The Ethics Commission is authorized to employ and assign the
necessary professional and clerical staff to assist the Review Board in the
performance of its duties and commission staff shall, as the commission deems
appropriate, also serve as staff to the Review Board. All investigations and
proceedings of the Review Board are deemed confidential as provided in section
four of this article and members of the Review Board are bound to the same
confidentiality requirements applicable to the Ethics Commission pursuant to
this article.
(g) The
Review Board may subpoena witnesses, compel their attendance and testimony,
administer oaths and affirmations, take evidence and require by subpoena the
production of books, papers, records or other evidence needed for the
performance of the Review Board?s duties.
(h) Upon
decision by the Review Board that probable cause exists to believe that a
violation of this chapter has occurred, commission staff shall send notice to
the commission members of the Review Board?s finding. After an ethics complaint
has been submitted to the Review Board in accordance with section four of this
article, the commission may take no further action until it receives the Review
Board?s probable cause finding.
?6B-2-3a. Complaints.
(a) The
commission may commence an investigation, pursuant to section four of this
article, on the filing of a complaint duly verified by oath or affirmation, by
any person.
(b) The
commission may order the executive director to prepare a complaint, upon a
majority affirmative vote of its members, if it receives or discovers credible
information which, if true, would merit an inquiry into whether a violation of
this article chapter has occurred.
(c) (1)
No complaint may be accepted or initiated by the commission against a public
official or public employee during the sixty days before a primary or general
election at which the public official or public employees is a candidate for
elective office.
(2) If a
complaint is pending against a public official or public employee who is also a
candidate for public office, then the commission shall stay the processing of
the complaint for the sixty-day time period preceding the primary election or
general election, or both, unless the candidate waives the stay in writing. If
the commission receives a written waiver of the stay at least sixty days prior
to the election, and if the Review Board has not yet ruled whether probable
cause exists to believe there has been a violation of the Ethics Act, then the
Review Board will process the complaint and make a probable cause determination
at least thirty days prior to the election: Provided, That, the stay
provisions of this subdivision do not apply to complaints which have already
been adjudicated by the commission and are pending on appeal.
(3) For
purposes of this subsection, any provisions of this chapter setting time
periods for initiating a complaint or for performing any other action are
considered tolled until after the election at which the public official or
public employee candidate stands for elective office.
?6B-2-4. Processing complaints; dismissals; hearings; disposition;
judicial review.
(a) Upon
the filing of a complaint, the executive director of the commission or his or
her designee shall, within three working days, acknowledge the receipt of the
complaint by first-class mail unless the complaint was initiated by the
commission or the complainant or his or her representative personally filed the
complaint with the commission and was given a receipt or other acknowledgment
evidencing the filing of the complaint. No political party or officer, employee
or agent of a political party acting in his or her official capacity may file a
complaint for a violation of this chapter with the commission. Nothing in this
section prohibits a private citizen, acting in that capacity, from filing a
verified complaint with the commission under this section. Within fourteen days
after the receipt of a complaint, the executive director shall refer the
complaint to the Review Board created pursuant to section two-a of this
article.
(b) Upon
the referral of a complaint by the executive director pursuant to subsection
(a) of this section, the Review Board shall determine whether the allegations
of the complaint, if taken as true, would constitute a violation of law upon
which the commission could properly act under the provisions of this chapter.
If the complaint is determined by a majority vote of the Review Board to be
insufficient in this regard, the Review Board shall dismiss the complaint.
(c) Upon
a finding by the Review Board that the complaint is sufficient, the executive
director shall give notice of a pending investigation to the complainant, if
any, and to the respondent. The notice of investigation shall be mailed to the
parties and, in the case of the respondent, shall be mailed as certified mail,
return receipt requested, marked ?Addressee only, personal and confidential?.
The notice shall describe the conduct of the respondent which is alleged to
violate the law and a copy of the complaint shall be appended to the notice mailed
to the respondent. Each notice of investigation shall inform the respondent
that the purpose of the investigation is to determine whether probable cause
exists to believe that a violation of law has occurred which may subject the
respondent to administrative sanctions by the commission, criminal prosecution
by the state, or civil liability. The notice shall further inform the
respondent that he or she has a right to appear before the Review Board and
that he or she may respond in writing to the commission within thirty days
after the receipt of the notice, but that no fact or allegation shall be taken
as admitted by a failure or refusal to timely respond.
(d)
Within the forty-five day period following the mailing of a notice of
investigation, the Review Board shall proceed to consider: (1) The allegations
raised in the complaint; (2) any timely received written response of the
respondent; and (3) any other competent evidence gathered by or submitted to
the commission Review Board which has a proper bearing on the
issue of probable cause. A respondent may appear before the Review Board and
make an oral response to the complaint. The commission shall promulgate rules
prescribing the manner in which a respondent may present his or her oral
response. The commission and Review Board may ask a respondent to
disclose specific amounts received from a source and request other detailed
information not otherwise required to be set forth in a statement or report
filed under the provisions of this chapter if the information sought is
considered to be probative as to the issues raised by a complaint or an
investigation initiated by the commission. Any information thus received shall
be confidential except as provided by subsection (f) of this section. If a
person asked to provide information fails or refuses to furnish the information
to the commission or Review Board, the commission or Review Board
may exercise its their subpoena power as provided in this chapter
and any subpoena issued by the commission or Review Board shall have the
same force and effect as a subpoena issued by a circuit court of this state.
Enforcement of any subpoena may be had upon application to a circuit court of
the county in which the Review Board is conducting an investigation through the
issuance of a rule or an attachment against the respondent as in cases of
contempt.
(e)
Unless consented to by both the respondent and complainant, or unless the
commission makes a good cause determination in writing the investigation and a
determination as to probable cause shall not exceed eighteen months.
(f) (1)
All investigations, complaints, reports, records, proceedings and other
information received by the commission or Review Board and related to
complaints made to the commission or investigations conducted by the commission
or Review Board pursuant to this section, including the identity of the
complainant or respondent, are confidential and may not be knowingly and
improperly disclosed by any current or former member or employee of the
commission or the Review Board except as follows:
(A) Once
there has been a finding that probable cause exists to believe that a
respondent has violated the provisions of this chapter and the respondent has
been served by the commission with a copy of the Review Board?s order and the
statement of charges prepared pursuant to the provisions of subsection (h) of
this section, the complaint and all reports, records, nonprivileged and
nondeliberative material introduced at any probable cause hearing held pursuant
to the complaint cease to be confidential.
(B)
After a finding of probable cause, any subsequent hearing held in the matter
for the purpose of receiving evidence or the arguments of the parties or their
representatives shall be open to the public and all reports, records and
nondeliberative materials introduced into evidence at the hearing, as well as
the commission?s orders, are not confidential.
(C) The
commission may release any information relating to an investigation at any time
if the release has been agreed to in writing by the respondent.
(D) The
complaint and the identity of the complainant shall be disclosed to a person
named as respondent immediately upon the respondent?s request.
(E)
Where the commission is otherwise required by the provisions of this chapter to
disclose information or to proceed in such a manner that disclosure is
necessary and required to fulfill those requirements.
(1) (2)
If, in a specific case, the commission finds that there is a reasonable
likelihood that the dissemination of information or opinion in connection with
a pending or imminent proceeding will interfere with a fair hearing or
otherwise prejudice the due administration of justice, the commission shall
order that all or a portion of the information communicated to the commission to
cause an investigation and all allegations of ethical misconduct or criminal
acts contained in a complaint shall be confidential and the person providing
the information or filing a complaint shall be bound to confidentiality until
further order of the commission.
(g) If
the members of the Review Board fail to find probable cause, the proceedings
shall be dismissed by the commission in an order signed by the members of the
Review Board. Copies of the order of dismissal shall be sent to the complainant
and served upon the respondent forthwith. If the Review Board decides by a
unanimous vote that there is probable cause to believe that a violation under
this chapter has occurred, the members of the Review Board shall sign an order
directing the commission staff to prepare a statement of charges and assign the
matter for hearing to the commission or a hearing examiner as the commission
may subsequently direct. The commission shall then schedule a hearing, to be
held within ninety days after the date of the order, to determine the truth or
falsity of the charges. The commission?s review of the evidence presented shall
be de novo. For the purpose of this section, service of process upon the
respondent is obtained at the time the respondent or the respondent?s agent
physically receives the process, regardless of whether the service of process
is in person or by certified mail.
(h) At
least eighty days prior to the date of the hearing, the commission shall serve
the respondent by certified mail, return receipt requested, with the statement
of charges and a notice of hearing setting forth the date, time and place for
the hearing. The scheduled hearing may be continued only upon a showing of good
cause by the respondent or under other circumstances as the commission, by
legislative rule, directs.
(i) The
commission may sit as a hearing board to adjudicate the case or may permit an
assigned hearing examiner employed by the commission to preside at the taking
of evidence. The commission shall, by legislative rule, establish the general
qualifications for hearing examiners. The legislative rule shall also contain
provisions which ensure that the functions of a hearing examiner will be
conducted in an impartial manner and describe the circumstances and procedures
for disqualification of hearing examiners.
(j) A
member of the commission or a hearing examiner presiding at a hearing may:
(1)
Administer oaths and affirmations, compel the attendance of witnesses and the
production of documents, examine witnesses and parties and otherwise take
testimony and establish a record;
(2) Rule
on offers of proof and receive relevant evidence;
(3) Take
depositions or have depositions taken when the ends of justice will be served;
(4)
Regulate the course of the hearing;
(5) Hold
conferences for the settlement or simplification of issues by consent of the
parties;
(6)
Dispose of procedural requests or similar matters;
(7)
Accept stipulated agreements;
(8) Take
other action authorized by the Ethics Commission consistent with the provisions
of this chapter.
(k) With
respect to allegations of a violation under this chapter, the complainant has
the burden of proof. The West Virginia Rules of Evidence governing proceedings
in the courts of this state shall be given like effect in hearings held before
the commission or a hearing examiner. The commission shall, by rule, regulate
the conduct of hearings so as to provide full procedural due process to a
respondent. Hearings before a hearing examiner shall be recorded
electronically. When requested by either of the parties, the presiding officer
shall order a transcript, verified by oath or affirmation, of each hearing held
and so recorded. In the discretion of the commission, a record of the
proceedings may be made by a certified court reporter. Unless otherwise ordered
by the commission, the cost of preparing a transcript shall be paid by the
party requesting the transcript. Upon a showing of indigency, the commission
may provide a transcript without charge. Within fifteen days following the hearing,
either party may submit to the hearing examiner that party?s proposed findings
of fact. The hearing examiner shall thereafter prepare his or her own proposed
findings of fact and make copies of the findings available to the parties. The
hearing examiner shall then submit the entire record to the commission for
final decision.
(l) The
recording of the hearing or the transcript of testimony, as the case may be,
and the exhibits, together with all papers and requests filed in the
proceeding, and the proposed findings of fact of the hearing examiner and the
parties, constitute the exclusive record for decision by the commission, unless
by leave of the commission a party is permitted to submit additional
documentary evidence or take and file depositions or otherwise exercise
discovery.
(m) The
commission shall set a time and place for the hearing of arguments by the
complainant and respondent, or their respective representatives, and shall
notify the parties thereof. Briefs may be filed by the parties in accordance
with procedural rules promulgated by the commission. The commission shall issue
a final decision in writing within forty-five days of the receipt of the entire
record of a hearing held before a hearing examiner or, in the case of an
evidentiary hearing held by the commission acting as a hearing board in lieu of
a hearing examiner, within twenty-one days following the close of the evidence.
(n) A
decision on the truth or falsity of the charges against the respondent and a
decision to impose sanctions must be approved by at least seven six
members of the commission.
(o)
Members of the commission shall recuse themselves from a particular case upon
their own motion with the approval of the commission or for good cause shown
upon motion of a party. The remaining members of the commission may, by
majority vote, select a temporary member to replace a recused member: Provided,
That the temporary member selected to replace a recused member shall be a
person of the same status or category, provided by subsection (b) (c),
section one of this article, as the recused member.
(p)
Except for statements made in the course of official duties to explain
commission procedures, no member or employee or former member or employee of
the commission may make any public or nonpublic comment about any proceeding
previously or currently before the commission. Any member or employee or former
member or employee of the commission who violates this subsection is subject to
the penalties contained in subsection (e) (d), section ten of
this article. In addition, violation of this subsection by a current member or
employee of the commission is grounds for immediate removal from office or
termination of employment.
(q) A
complainant may be assisted by a member of the commission staff assigned by the
commission after a determination of probable cause.
(r) No
employee of the commission assigned to prosecute a complaint may participate in
the commission deliberations or communicate with commission members or the
public concerning the merits of a complaint.
(s) (1)
If the commission finds by clear and convincing evidence that the facts alleged
in the complaint are true and constitute a material violation of this article
chapter, it may impose one or more of the following sanctions:
(A)
Public reprimand;
(B)
Cease and desist orders;
(C)
Orders of restitution for money, things of value, or services taken or received
in violation of this chapter;
(D)
Fines not to exceed $5,000 per violation; or
(E)
Reimbursement to the commission for the actual costs of investigating and
prosecuting a violation. Any reimbursement ordered by the commission for its
costs under this paragraph shall be collected by the commission and deposited
into the special revenue account created pursuant to section six, article one
of this chapter.
(2) In
addition to imposing the above-specified sanctions, the commission may
recommend to the appropriate governmental body that a respondent be terminated
from employment or removed from office.
(3) The
commission may institute civil proceedings in the circuit court of the county
in which a violation occurred for the enforcement of sanctions.
(t) At
any stage of the proceedings under this section, the commission may enter into
a conciliation agreement with a respondent if the agreement is deemed by a
majority of the members of the commission to be in the best interest of the
state and the respondent. Any conciliation agreement must be disclosed to the
public: Provided, That negotiations leading to a conciliation agreement,
as well as information obtained by the commission during the negotiations,
shall remain confidential except as may be otherwise set forth in the
agreement.
(u)
Decisions of the commission involving the issuance of sanctions may be appealed
to the circuit court of Kanawha County, only by the respondent and only upon
the grounds set forth in section four, article five, chapter twenty-nine-a of
this code.
(v) (1)
Any person who in good faith files a verified complaint or any person, official
or agency who gives credible information resulting in a formal complaint filed
by commission staff is immune from any civil liability that otherwise might
result by reason of such actions.
(2) If
the commission determines, by clear and convincing evidence, that a person
filed a complaint or provided information which resulted in an investigation
knowing that the material statements in the complaint or the investigation
request or the information provided were not true; filed an unsubstantiated
complaint or request for an investigation in reckless disregard of the truth or
falsity of the statements contained therein; or filed one or more
unsubstantiated complaints which constituted abuse of process, the commission
shall:
(A)
Order the complainant or informant to reimburse the respondent for his or her
reasonable costs;
(B)
Order the complainant or informant to reimburse the respondent for his or her
reasonable attorney fees; and
(C)
Order the complainant or informant to reimburse the commission for the actual
costs of its investigation. In addition, the commission may decline to process
any further complaints brought by the complainant, the initiator of the
investigation or the informant.
(3) The
sanctions authorized in this subsection are not exclusive and do not preclude
any other remedies or rights of action the respondent may have against the
complainant or informant under the law.
(w) (1)
If at any stage in the proceedings under this section it appears to a Review
Board, a hearing examiner or the commission that there is credible information
or evidence that the respondent may have committed a criminal violation, the
matter shall be referred to the full commission for its consideration. If, by a
vote of two-thirds of the members of the full commission, it is determined that
probable cause exists to believe a criminal violation has occurred, the
commission shall refer the matter to the appropriate county prosecuting
attorney having jurisdiction for a criminal investigation and possible
prosecution. Deliberations of the commission with regard to referring a matter
for criminal investigation by a prosecuting attorney shall be private and
confidential. Notwithstanding any other provision of this article, once a
referral for criminal investigation is made under the provisions of this
subsection, the ethics proceedings shall be held in abeyance until action on
the referred matter is concluded. If the referral of the matter to the
prosecuting attorney results in a criminal conviction of the respondent, the
commission may resume its investigation or prosecution of the ethics violation,
but may not impose a fine as a sanction if a violation is found to have
occurred.
(2) If
fewer than two-thirds of the full commission determine that a criminal
violation has occurred, the commission shall remand the matter to the Review
Board, the hearing examiner or the commission itself as a hearing board, as the
case may be, for further proceedings under this article.
(x) The
provisions of this section shall apply to violations of this chapter occurring
after September 30, 1989, and within one year before the filing of a complaint:
Provided, That the applicable statute of limitations for violations
which occur on or after July 1, 2005, is two years after the date on which the
alleged violation occurred: Provided, however,
That the applicable statute of limitations for violations which occur on or
after July 1, 2016, is five years after the date on which the alleged violation
occurred.
?6B-2-5. Ethical standards for elected and appointed officials and
public employees.
(a) Persons
subject to section. -- The provisions of this section apply to all elected
and appointed public officials and public employees, whether full or part time,
in state, county, municipal governments and their respective boards, agencies,
departments and commissions and in any other regional or local governmental
agency, including county school boards.
(b) Use
of public office for private gain. -- (1) A public official or public
employee may not knowingly and intentionally use his or her office or the
prestige of his or her office for his or her own private gain or that of
another person. Incidental use of equipment or resources available to a public
official or public employee by virtue of his or her position for personal or
business purposes resulting in de minimis private gain does not constitute use
of public office for private gain under this subsection. The performance of
usual and customary duties associated with the office or position or the
advancement of public policy goals or constituent services, without
compensation, does not constitute the use of prestige of office for private
gain.
(2)
Notwithstanding the general prohibition against use of office for private gain,
public officials and public employees may use bonus points acquired through
participation in frequent traveler programs while traveling on official
government business: Provided, That the official?s or employee?s
participation in such program, or acquisition of such points, does not result
in additional costs to the government.
(3) The
Legislature, in enacting this subsection, recognizes that there may be certain
public officials or public employees who bring to their respective offices or
employment their own unique personal prestige which is based upon their
intelligence, education, experience, skills and abilities, or other personal
gifts or traits. In many cases, these persons bring a personal prestige to
their office or employment which inures to the benefit of the state and its
citizens. Those persons may, in fact, be sought by the state to serve in their
office or employment because, through their unusual gifts or traits, they bring
stature and recognition to their office or employment and to the state itself.
While the office or employment held or to be held by those persons may have its
own inherent prestige, it would be unfair to those individuals and against the
best interests of the citizens of this state to deny those persons the right to
hold public office or to be publicly employed on the grounds that they would, in
addition to the emoluments of their office or employment, be in a position to
benefit financially from the personal prestige which otherwise inheres to them.
Accordingly, the commission is directed, by legislative rule, to establish
categories of public officials and public employees, identifying them generally
by the office or employment held, and offering persons who fit within those
categories the opportunity to apply for an exemption from the application of
the provisions of this subsection. Exemptions may be granted by the commission,
on a case-by-case basis, when it is shown that: (A) The public office held or
the public employment engaged in is not such that it would ordinarily be
available or offered to a substantial number of the citizens of this state; (B)
the office held or the employment engaged in is such that it normally or
specifically requires a person who possesses personal prestige; and (C) the
person?s employment contract or letter of appointment provides or anticipates
that the person will gain financially from activities which are not a part of
his or her office or employment.
(4) A
public official or public employee may not show favoritism or grant patronage
in the employment or working conditions of his or her relative or a person with
whom he or she resides: Provided,
That as used in this subdivision, ?employment or working conditions? shall only
apply to government employment: Provided, however, That government employment
includes only those governmental entities specified in subsection (a) of this
section.
(c) Gifts.
-- (1) A public official or public employee may not solicit any gift unless the
solicitation is for a charitable purpose with no resulting direct pecuniary
benefit conferred upon the official or employee or his or her immediate family:
Provided, That no public official or public employee may solicit for a
charitable purpose any gift from any person who is also an official or employee
of the state and whose position is subordinate to the soliciting official or
employee: Provided, however, That nothing herein shall prohibit a
candidate for public office from soliciting a lawful political contribution. No
official or employee may knowingly accept any gift, directly or indirectly,
from a lobbyist or from any person whom the official or employee knows or has
reason to know:
(A) Is
doing or seeking to do business of any kind with his or her agency;
(B) Is
engaged in activities which are regulated or controlled by his or her agency;
or
(C) Has
financial interests which may be substantially and materially affected, in a
manner distinguishable from the public generally, by the performance or
nonperformance of his or her official duties.
(2)
Notwithstanding the provisions of subdivision (1) of this subsection, a person
who is a public official or public employee may accept a gift described in this
subdivision, and there shall be a presumption that the receipt of such gift
does not impair the impartiality and independent judgment of the person. This
presumption may be rebutted only by direct objective evidence that the gift did
impair the impartiality and independent judgment of the person or that the
person knew or had reason to know that the gift was offered with the intent to
impair his or her impartiality and independent judgment. The provisions of
subdivision (1) of this subsection do not apply to:
(A)
Meals and beverages;
(B)
Ceremonial gifts or awards which have insignificant monetary value;
(C)
Unsolicited gifts of nominal value or trivial items of informational value;
(D)
Reasonable expenses for food, travel and lodging of the official or employee
for a meeting at which the official or employee participates in a panel or has
a speaking engagement;
(E)
Gifts of tickets or free admission extended to a public official or public
employee to attend charitable, cultural or political events, if the purpose of
such gift or admission is a courtesy or ceremony customarily extended to the
office;
(F)
Gifts that are purely private and personal in nature; or
(G)
Gifts from relatives by blood or marriage, or a member of the same household.
(3) The
commission shall, through legislative rule promulgated pursuant to chapter
twenty-nine-a of this code, establish guidelines for the acceptance of a
reasonable honorarium by public officials and elected officials. The rule
promulgated shall be consistent with this section. Any elected public official
may accept an honorarium only when:
(A) That
official is a part-time elected public official;
(B) The
fee is not related to the official?s public position or duties;
(C) The
fee is for services provided by the public official that are related to the
public official?s regular, nonpublic trade, profession, occupation, hobby or
avocation; and
(D) The
honorarium is not provided in exchange for any promise or action on the part of
the public official.
(4)
Nothing in this section shall be construed so as to prohibit the giving of a
lawful political contribution as defined by law.
(5) The
Governor or his designee may, in the name of the State of West Virginia, accept
and receive gifts from any public or private source. Any gift so obtained shall
become the property of the state and shall, within thirty days of the receipt
thereof, be registered with the commission and the Division of Culture and
History.
(6) Upon
prior approval of the Joint Committee on Government and Finance, any member of
the Legislature may solicit donations for a regional or national legislative
organization conference or other legislative organization function to be held
in the state for the purpose of deferring costs to the state for hosting of the
conference or function. Legislative organizations are bipartisan regional or
national organizations in which the Joint Committee on Government and Finance
authorizes payment of dues or other membership fees for the Legislature?s
participation and which assist this and other State Legislatures and their
staff through any of the following:
(A)
Advancing the effectiveness, independence and integrity of Legislatures in the
states of the United States;
(B) Fostering
interstate cooperation and facilitating information exchange among State
Legislatures;
(C)
Representing the states and their Legislatures in the American federal system
of government;
(D)
Improving the operations and management of State Legislatures and the
effectiveness of legislators and legislative staff, and to encourage the
practice of high standards of conduct by legislators and legislative staff;
(E)
Promoting cooperation between State Legislatures in the United States and
Legislatures in other countries.
The
solicitations may only be made in writing. The legislative organization may act
as fiscal agent for the conference and receive all donations. In the
alternative, a bona fide banking institution may act as the fiscal agent. The
official letterhead of the Legislature may not be used by the legislative
member in conjunction with the fund raising or solicitation effort. The
legislative organization for which solicitations are being made shall file with
the Joint Committee on Government and Finance and with the Secretary of State
for publication in the State Register as provided in article two of chapter
twenty-nine-a of the code, copies of letters, brochures and other solicitation
documents, along with a complete list of the names and last known addresses of
all donors and the amount of donations received. Any solicitation by a
legislative member shall contain the following disclaimer:
?This
solicitation is endorsed by [name of member]. This endorsement does not imply
support of the soliciting organization, nor of the sponsors who may respond to
the solicitation. A copy of all solicitations are on file with the West
Virginia Legislature?s Joint Committee on Government and Finance, and with the
Secretary of State and are available for public review.?
(7) Upon
written notice to the commission, any member of the board of Public Works may
solicit donations for a regional or national organization conference or other
function related to the office of the member to be held in the state for the
purpose of deferring costs to the state for hosting of the conference or
function. The solicitations may only be made in writing. The organization may
act as fiscal agent for the conference and receive all donations. In the
alternative, a bona fide banking institution may act as the fiscal agent. The
official letterhead of the office of the Board of Public Works member may not
be used in conjunction with the fund raising or solicitation effort. The
organization for which solicitations are being made shall file with the Joint
Committee on Government and Finance, with the Secretary of State for
publication in the State Register as provided in article two of chapter
twenty-nine-a of the code and with the commission, copies of letters, brochures
and other solicitation documents, along with a complete list of the names and
last known addresses of all donors and the amount of donations received. Any
solicitation by a member of the board of Public Works shall contain the
following disclaimer: ?This solicitation is endorsed by (name of member of
Board of Public Works.) This endorsement does not imply support of the
soliciting organization, nor of the sponsors who may respond to the
solicitation. Copies of all solicitations are on file with the West Virginia
Legislature?s Joint Committee on Government and Finance, with the West Virginia
Secretary of State and with the West Virginia Ethics Commission and are
available for public review.? Any moneys in excess of those donations needed
for the conference or function shall be deposited in the Capitol Dome and
Capitol Improvement Fund established in section two, article four of chapter
five-a of this code.
(d) Interests
in public contracts. -?
(1) In
addition to the provisions of section fifteen, article ten, chapter sixty-one
of this code, no elected or appointed public official or public employee or
member of his or her immediate family or business with which he or she is
associated may be a party to or have an interest in the profits or benefits of
a contract which the official or employee may have direct authority to enter
into, or over which he or she may have control: Provided, That nothing
herein shall be construed to prevent or make unlawful the employment of any
person with any governmental body: Provided, however, That nothing herein
shall be construed to prohibit a member of the Legislature from entering into a
contract with any governmental body, or prohibit a part-time appointed public
official from entering into a contract which the part-time appointed public
official may have direct authority to enter into or over which he or she may
have control when the official has not participated in the review or evaluation
thereof, has been recused from deciding or evaluating and has been excused from
voting on the contract and has fully disclosed the extent of his or her
interest in the contract.
(2) In
the absence of bribery or a purpose to defraud, an elected or appointed public
official or public employee or a member of his or her immediate family or a
business with which he or she is associated shall not be considered as having a
prohibited financial interest in a public contract when such a person has a
limited interest as an owner, shareholder or creditor of the business which is
awarded a public contract. A limited interest for the purposes of this
subsection is:
(A) An
interest which does not exceed $1,000 in the profits or benefits of the public
contract or contracts in a calendar year;
(B) An
interest as a creditor of a public employee or official who exercises control
over the contract, or a member of his or her immediate family, if the amount is
less than $5,000.
(3) If a
public official or employee has an interest in the profits or benefits of a
contract, then he or she may not make, participate in making, or in any way
attempt to use his office or employment to influence a government decision
affecting his or her financial or limited financial interest. Public officials
shall also comply with the voting rules prescribed in subsection (j) of this
section.
(4)
Where the provisions of subdivisions (1) and (2) of this subsection would
result in the loss of a quorum in a public body or agency, in excessive cost,
undue hardship, or other substantial interference with the operation of a
state, county, municipality, county school board or other governmental agency,
the affected governmental body or agency may make written application to the
Ethics Commission for an exemption from subdivisions (1) and (2) of this
subsection.
(e) Confidential
information. -- No present or former public official or employee may
knowingly and improperly disclose any confidential information acquired by him
or her in the course of his or her official duties nor use such information to
further his or her personal interests or the interests of another person.
(f) Prohibited
representation. -- No present or former elected or appointed public
official or public employee shall, during or after his or her public employment
or service, represent a client or act in a representative capacity with or
without compensation on behalf of any person in a contested case, rate-making
proceeding, license or permit application, regulation filing or other
particular matter involving a specific party or parties which arose during his
or her period of public service or employment and in which he or she personally
and substantially participated in a decision-making, advisory or staff support
capacity, unless the appropriate government agency, after consultation,
consents to such representation. A staff attorney, accountant or other professional
employee who has represented a government agency in a particular matter shall
not thereafter represent another client in the same or substantially related
matter in which that client?s interests are materially adverse to the interests
of the government agency, without the consent of the government agency: Provided,
That this prohibition on representation shall not apply when the client was not
directly involved in the particular matter in which the professional employee
represented the government agency, but was involved only as a member of a
class. The provisions of this subsection shall not apply to legislators who
were in office and legislative staff who were employed at the time it
originally became effective on July 1, 1989, and those who have since become
legislators or legislative staff and those who shall serve hereafter as
legislators or legislative staff.
(g) Limitation
on practice before a board, agency, commission or department. -- Except as
otherwise provided in section three, four or five, article two, chapter eight-a
of this code: (1) No elected or appointed public official and no full-time
staff attorney or accountant shall, during his or her public service or public
employment or for a period of one year after the termination of his or her
public service or public employment with a governmental entity authorized to
hear contested cases or promulgate or propose rules, appear in a representative
capacity before the governmental entity in which he or she serves or served or
is or was employed in the following matters:
(A) A
contested case involving an administrative sanction, action or refusal to act;
(B) To
support or oppose a proposed rule;
(C) To
support or contest the issuance or denial of a license or permit;
(D) A
rate-making proceeding; and
(E) To
influence the expenditure of public funds.
(2) As
used in this subsection, ?represent? includes any formal or informal appearance
before, or any written or oral communication with, any public agency on behalf
of any person: Provided, That nothing contained in this subsection shall
prohibit, during any period, a former public official or employee from being
retained by or employed to represent, assist or act in a representative
capacity on behalf of the public agency by which he or she was employed or in
which he or she served. Nothing in this subsection shall be construed to
prevent a former public official or employee from representing another state,
county, municipal or other governmental entity before the governmental entity
in which he or she served or was employed within one year after the termination
of his or her employment or service in the entity.
(3) A
present or former public official or employee may appear at any time in a
representative capacity before the Legislature, a county commission, city or
town council or county school board in relation to the consideration of a
statute, budget, ordinance, rule, resolution or enactment.
(4)
Members and former members of the Legislature and professional employees and
former professional employees of the Legislature shall be permitted to appear
in a representative capacity on behalf of clients before any governmental
agency of the state or of county or municipal governments, including county
school boards.
(5) An
elected or appointed public official, full-time staff attorney or accountant
who would be adversely affected by the provisions of this subsection may apply
to the Ethics Commission for an exemption from the one year prohibition against
appearing in a representative capacity, when the person?s education and
experience is such that the prohibition would, for all practical purposes,
deprive the person of the ability to earn a livelihood in this state outside of
the governmental agency. The Ethics Commission shall by legislative rule
establish general guidelines or standards for granting an exemption or reducing
the time period, but shall decide each application on a case-by-case basis.
(h) Employment
by regulated persons and vendors. -- (1) No full-time official or full-time
public employee may seek employment with, be employed by, or seek to purchase,
sell or lease real or personal property to or from any person who:
(A) Had
a matter on which he or she took, or a subordinate is known to have taken,
regulatory action within the preceding twelve months; or
(B) Has
a matter before the agency on which he or she is working or a subordinate is
known by him or her to be working.
(C) Is a
vendor to the agency where the official serves or public employee is employed
and the official or public employee, or a subordinate of the official or public
employee, exercises authority or control over a public contract with such
vendor, including, but not limited to:
(i)
Drafting bid specifications or requests for proposals;
(ii)
Recommending selection of the vendor;
(iii)
Conducting inspections or investigations;
(iv)
Approving the method or manner of payment to the vendor;
(v)
Providing legal or technical guidance on the formation, implementation or
execution of the contract; or
(vi)
Taking other nonministerial action which may affect the financial interests of
the vendor.
(2)
Within the meaning of this section, the term ?employment? includes professional
services and other services rendered by the public official or public employee,
whether rendered as employee or as an independent contractor; ?seek employment?
includes responding to unsolicited offers of employment as well as any direct
or indirect contact with a potential employer relating to the availability or
conditions of employment in furtherance of obtaining employment; and ?subordinate?
includes only those agency personnel over whom the public official or public
employee has supervisory responsibility.
(3) A
full-time public official or full-time public employee who would be adversely
affected by the provisions of this subsection may apply to the Ethics
Commission for an exemption from the prohibition contained in subdivision (1)
of this subsection.
(A) The
Ethics Commission shall by legislative rule establish general guidelines or
standards for granting an exemption, but shall decide each application on a
case-by-case basis;
(B) A
person adversely affected by the restriction on the purchase of personal
property may make such purchase after seeking and obtaining approval from the
commission or in good faith reliance upon an official guideline promulgated by
the commission, written advisory opinions issued by the commission, or a
legislative rule.
(C) The
commission may establish exceptions to the personal property purchase
restrictions through the adoption of guidelines, advisory opinions or
legislative rule.
(4) A
full-time public official or full-time public employee may not take personal
regulatory action on a matter affecting a person by whom he or she is employed
or with whom he or she is seeking employment or has an agreement concerning
future employment.
(5) A
full-time public official or full-time public employee may not personally
participate in a decision, approval, disapproval, recommendation, rendering
advice, investigation, inspection or other substantial exercise of
nonministerial administrative discretion involving a vendor with whom he or she
is seeking employment or has an agreement concerning future employment.
(6) A
full-time public official or full-time public employee may not receive private
compensation for providing information or services that he or she is required
to provide in carrying out his or her public job responsibilities.
(i) Members
of the Legislature required to vote. -- Members of the Legislature who have
asked to be excused from voting or who have made inquiry as to whether they
should be excused from voting on a particular matter and who are required by
the presiding officer of the House of Delegates or Senate of West Virginia to
vote under the rules of the particular house shall not be guilty of any
violation of ethics under the provisions of this section for a vote so cast.
(j) Limitations
on voting. -?
(1)
Public officials, excluding members of the Legislature who are governed by
subsection (i) of this section, may not vote on a matter:
(A) In
which they, an immediate family member, or a business with which they or an
immediate family member is associated have a financial interest. Business with
which they are associated means a business of which the person or an immediate
family member is a director, officer, owner, employee, compensated agent, or
holder of stock which constitutes five percent or more of the total outstanding
stocks of any class.
(B) If a
public official is employed by a financial institution and his or her primary
responsibilities include consumer and commercial lending, the public official
may not vote on a matter which directly affects the financial interests of a
customer of the financial institution if the public official is directly
involved in approving a loan request from the person or business appearing
before the governmental body or if the public official has been directly
involved in approving a loan for that person or business within the past twelve
months: Provided, That this limitation only applies if the total amount
of the loan or loans exceeds $15,000.
(C) A
personnel matter involving the public official?s spouse or relative;
(C) The
employment or working conditions of the public official?s relative or person
with whom the public official resides.
(D) The appropriations of
public moneys or the awarding of a contract to a nonprofit corporation if the
public official or an immediate family member is employed by, or a
compensated officer or board member of, the nonprofit: Provided, That if the public official or
immediate family member is an uncompensated officer or board member of the
nonprofit, then the public official shall publicly disclose such relationship
prior to a vote on the appropriations of public moneys or award of contract to
the nonprofit; Provided, however,
That for purposes of this paragraph, public disclosure shall mean disclosure of
the public official?s, or his or her immediate family member?s, relationship to
the nonprofit (i) on the agenda item relating to the appropriation or award
contract, if known at time of agenda, (ii) by the public official at the
meeting prior to the vote, and (iii) in the minutes of the meeting.
(II) (2)
A public official may vote:
(A) If
the public official, his or her spouse, immediate family members or relatives
or business with which they are associated are affected as a member of, and to
no greater extent than any other member of a profession, occupation, class of
persons or class of businesses. A class shall consist of not fewer than five
similarly situated persons or businesses; or
(B) If
the matter affects a publicly traded company when:
(i) The
public official, or dependent family members individually or jointly own less
than five percent of the issued stock in the publicly traded company and the
value of the stocks individually or jointly owned is less than $10,000; and
(ii)
Prior to casting a vote the public official discloses his or her interest in
the publicly traded company.
(3) For
a public official?s recusal to be effective, it is necessary to excuse him or
herself from participating in the discussion and decision-making process by
physically removing him or herself from the room during the period, fully
disclosing his or her interests, and recusing him or herself from voting on the
issue. The recusal shall also be reflected in the meeting minutes.
(k)
Limitations on participation in licensing and rate-making proceedings. -- No
public official or employee may participate within the scope of his or her
duties as a public official or employee, except through ministerial functions
as defined in section three, article one of this chapter, in any license or
rate-making proceeding that directly affects the license or rates of any
person, partnership, trust, business trust, corporation or association in which
the public official or employee or his or her immediate family owns or controls
more than ten percent. No public official or public employee may participate
within the scope of his or her duties as a public official or public employee,
except through ministerial functions as defined in section three, article one
of this chapter, in any license or rate-making proceeding that directly affects
the license or rates of any person to whom the public official or public
employee or his or her immediate family, or a partnership, trust, business
trust, corporation or association of which the public official or employee, or
his or her immediate family, owns or controls more than ten percent, has sold
goods or services totaling more than $1,000 during the preceding year, unless
the public official or public employee has filed a written statement
acknowledging such sale with the public agency and the statement is entered in
any public record of the agency?s proceedings. This subsection shall not be
construed to require the disclosure of clients of attorneys or of patients or
clients of persons licensed pursuant to article three, eight, fourteen,
fourteen-a, fifteen, sixteen, twenty, twenty-one or thirty-one, chapter thirty
of this code.
(l) Certain
compensation prohibited. -- (1) A public employee may not receive
additional compensation from another publicly-funded state, county or municipal
office or employment for working the same hours, unless:
(A) The
public employee?s compensation from one public employer is reduced by the
amount of compensation received from the other public employer;
(B) The
public employee?s compensation from one public employer is reduced on a pro
rata basis for any work time missed to perform duties for the other public employer;
(C) The
public employee uses earned paid vacation, personal or compensatory time or
takes unpaid leave from his or her public employment to perform the duties of
another public office or employment; or
(D) A
part-time public employee who does not have regularly scheduled work hours or a
public employee who is authorized by one public employer to make up, outside of
regularly scheduled work hours, time missed to perform the duties of another
public office or employment maintains time records, verified by the public
employee and his or her immediate supervisor at least once every pay period,
showing the hours that the public employee did, in fact, work for each public
employer. The public employer shall submit these time records to the Ethics
Commission on a quarterly basis.
(2) This
section does not prohibit a retired public official or public employee from
receiving compensation from a publicly-funded office or employment in addition
to any retirement benefits to which the retired public official or public
employee is entitled.
(m) Certain
expenses prohibited. -- No public official or public employee shall
knowingly request or accept from any governmental entity compensation or
reimbursement for any expenses actually paid by a lobbyist and required by the
provisions of this chapter to be reported, or actually paid by any other
person.
(n) Any
person who is employed as a member of the faculty or staff of a public
institution of higher education and who is engaged in teaching, research,
consulting or publication activities in his or her field of expertise with
public or private entities and thereby derives private benefits from such
activities shall be exempt from the prohibitions contained in subsections (b),
(c) and (d) of this section when the activity is approved as a part of an
employment contract with the governing board of the institution or has been
approved by the employee?s department supervisor or the president of the
institution by which the faculty or staff member is employed.
(o)
Except as provided in this section, a person who is a public official or public
employee may not solicit private business from a subordinate public official or
public employee whom he or she has the authority to direct, supervise or
control. A person who is a public official or public employee may solicit
private business from a subordinate public official or public employee whom he
or she has the authority to direct, supervise or control when:
(A) The
solicitation is a general solicitation directed to the public at large through
the mailing or other means of distribution of a letter, pamphlet, handbill,
circular or other written or printed media; or
(B) The
solicitation is limited to the posting of a notice in a communal work area; or
(C) The
solicitation is for the sale of property of a kind that the person is not
regularly engaged in selling; or
(D) The
solicitation is made at the location of a private business owned or operated by
the person to which the subordinate public official or public employee has come
on his or her own initiative.
(p) The
commission may, by legislative rule promulgated in accordance with chapter
twenty-nine-a of this code, define further exemptions from this section as
necessary or appropriate.
?6B-2-6. Financial disclosure statement; filing requirements.
(a) The
financial disclosure statement shall be filed on February 1 of each calendar
year to cover the period of the preceding calendar year, except insofar as may
be otherwise provided herein. The following persons must file the financial disclosure
statement required by this section with the Ethics Commission:
(1) All
elected officials in this state, including, but not limited to, all persons
elected statewide, all county elected officials, municipal elected officials in
municipalities which have, by ordinance, opted to be covered by the disclosure
provisions of this section, all members of the several county or district
boards of education and all county or district school board superintendents;
(2) All
members of state boards, commissions and agencies appointed by the Governor;
and
(3)
Secretaries of departments, commissioners, deputy commissioners, assistant
commissioners, directors, deputy directors, assistant directors, department
heads, deputy department heads and assistant department heads.
A person
who is required to file a financial disclosure statement under this section by
virtue of becoming an elected or appointed public official whose office is
described in subdivision (1), (2) or (3) of this subsection, and who assumes
the office less than ten days before a filing date established herein or who
assumes the office after the filing date, shall file a financial disclosure
statement for the previous twelve months no later than thirty days after the
date on which the person assumes the duties of the office, unless the person
has filed a financial disclosure statement with the commission during the
twelve-month period before he or she assumed office.
(b) A
candidate for public office shall file a financial disclosure statement for the
previous calendar year with the state Ethics Commission no later than ten days
after he or she files a certificate of candidacy but in all circumstances,
not later than ten days prior to the election, announcement, unless
he or she has previously filed a financial disclosure statement with the
state Ethics Commission during for the previous calendar year.
The
Ethics Commission shall file a duplicate copy of the financial disclosure
statement required in this section in the following offices within ten days of
the receipt of the candidate?s statement of disclosure:
(1)
Municipal candidates in municipalities which have opted, by ordinance, to be
covered by the disclosure provisions of this section, in the office of the
clerk of the municipality in which the candidate is seeking office;
(2)
Legislative candidates in single county districts and candidates for a county
office or county school board in the office of the clerk of the county
commission of the county in which the candidate is seeking office;
(3)
Legislative candidates from multi-county districts and congressional candidates
in the office of the clerk of the county commission of the county of the
candidate? residence.
After a
ninety-day period following any election, the clerks who receive the financial disclosure
statements of candidates may destroy or dispose of those statements filed by
candidates who were unsuccessful in the election.
(c) No
candidate for public office may maintain his or her place on a ballot and no
public official may take the oath of office or enter or continue upon his or
her duties or receive compensation from public funds unless he or she has filed
a financial disclosure statement with the state Ethics Commission as required
by the provisions of this section.
(d) The
Ethics Commission may, upon request of any person required to file a financial
disclosure statement, and for good cause shown, extend the deadline for filing
such statement for a reasonable period of time: Provided, That no
extension of time shall be granted to a candidate who has not filed a financial
disclosure statement for the preceding filing period.
(e) No
person shall fail to file a statement required by this section.
(f) No
person shall knowingly file a materially false statement that is required to be
filed under this section.
(g) The
Ethics Commission shall publish either on the Internet or by printed document
made available to the public, a list of all persons who have violated any
Ethics Commission?s financial disclosure statement filing deadline.
(h) The
Ethics Commission shall, in addition to making all financial disclosure
statements available for inspection upon request:
(1)
Publish on the internet all financial disclosure statements filed by members of
the Legislature and candidates for legislative office, elected members of the
executive department and candidates for the offices that constitute the
executive department, and members of the Supreme Court of Appeals and
candidates for the Supreme Court of Appeals, commencing with those reports
filed on or after January 1, 2012; and
(2) Publish
on the Internet all financial disclosure statements filed by any other person
required to file such financial disclosure statements, as the commission
determines resources are available to permit the Ethics Commission to make such
publication on the Internet. The commission shall redact financial disclosure
statements published on the Internet to exclude from publication personal
information such as signatures, home addresses and mobile and home telephone
numbers.
?6B-2-10. Violations and penalties.
(a) Any
person who violates the provisions of subsection (e), (f) or (g), section five
of this article or violates the provisions of subdivision (1), subsection (e)
(f), section four of this article is guilty of a misdemeanor and, upon
conviction, shall be confined in jail for a period not to exceed six months or
shall be fined not more than $1,000, or both. A member or employee of the
commission or the Review Board convicted of violating said subdivision is
subject to immediate removal from office or discharge from employment.
(b) Any
person who violates the provisions of subsection (f), section six of this
article by willfully and knowingly filing a false financial statement or
knowingly and willfully concealing a material fact in filing the statement is
guilty of a misdemeanor and, upon conviction, shall be fined not more than
$1,000, or confined in jail not more than one year, or both.
(c) Any
person who knowingly fails or refuses to file a financial statement required by
section six of this article is guilty of a misdemeanor and, upon conviction,
shall be fined not less than $100 nor more than $1,000.
(d) If
any commission member or staff knowingly violates subsection (o) (p),
section four of this article, such person, upon conviction thereof, shall be
guilty of a misdemeanor and, shall be fined not less than $100 nor more than
$1,000.
(e) Any
person who violates the provisions of subdivision (2), subsection (e) (f),
section four of this article by knowingly and willfully disclosing any
information made confidential by an order of the commission is subject to
administrative sanction by the commission as provided in subsection (r) (s)
of said section.
(f) Any
person who knowingly gives false or misleading material information to the
commission or who induces or procures another person to give false or
misleading material information to the commission is subject to administrative
sanction by the commission as provided in subsection (r) (s),
section four of this article.
Chapter
6d. public contracts.
article 1. disclosure of
interested parties.
?6D-1-1. Definitions.
For
purposes of this article:
(a) ?Applicable
contract? means a contract of a state agency that has an actual or estimated
value of at least $100,000: Provided,
That this shall include a series of related contracts or orders in which the
cumulative total exceeds $100,000.
(b) ?Business
entity? means any entity recognized by law through which business is conducted,
including a sole proprietorship, partnership or corporation.
(c) ?Disclosure?
shall mean a form prescribed and approved by the Ethics Commission pursuant to
section three of this article.
(d) ?Interested
party? or ?Interested parties? means: (1) A business entity performing work or
service pursuant to, or in furtherance of, the applicable contract, including
specifically sub-contractors; (2) the person(s) who have an ownership interest
equal to or greater than 25% in the business entity performing work or service
pursuant to, or in furtherance of, the applicable contract; and (3) the person
or business entity, if any, that served as a compensated broker or intermediary
to actively facilitate the applicable contract or negotiated the terms of the
applicable contract with the state agency: Provided,
That subdivision (2) shall be inapplicable if a business entity is a publicly
traded company: Provided, however,
That subdivision (3) shall not include persons or business entities performing legal
services related to the negotiation or drafting of the applicable contract.
(e) ?State
agency? means a board, commission, office, department, or other agency in the
executive, judicial or legislative branch of state government, including
publicly funded institutions of higher education: Provided, That for purposes of this article, the West Virginia
Investment Management Board shall not be deemed a state agency nor subject to
the requirements of this article.
?6D-1-2. Disclosure of interested parties to a public contract;
supplemental disclosure.
??????????? (a) A state agency may not enter
into an applicable contract that has been awarded to a business entity unless
and until the business entity submits to the state agency a disclosure of
interested parties to the applicable contract.
(b) The
business entity shall submit the disclosure to the state agency no later than
when the contract is submitted to the state agency for signature and approval
by the state agency: Provided, That
this provision does not require submission of a disclosure pursuant to this
article as part of a bid for the contract.
(c)
Within thirty days following the completion or termination of the applicable
contract, the business entity shall submit a supplemental disclosure of
interested parties reflecting any new or differing interested parties to the
contract.
?6D-1-3. Filing with Ethics Commission.
(a) The
disclosure of interested parties must be submitted on a form prescribed and
approved by the Ethics Commission that includes:
(1) A
list of each interested party to the contract that is known or reasonably
anticipated by the contracting business entity; and
(2) The
signature of the authorized agent of the contracting business entity,
acknowledging that the disclosure is made under oath and under penalty of
perjury.
(b) Not
later than the fifteenth day after the date the state agency receives an
initial or supplemental disclosure of interested parties required under this
section, the state agency shall submit a copy of the disclosure to the Ethics
Commission.
(c) The
Ethics Commission shall make copies of the disclosures received from state
agencies publicly available. To the extent possible under existing technology
or upon obtaining sufficient technology, the Ethics Commission shall post copies
of the disclosures on the commission?s website.
?6D-1-4.
Higher Education Compliance.
(a) The provisions of section two and three of this
article do not apply to applicable contracts of a state institution of higher
education, as defined in section two, article one, chapter eighteen-b, if the
state institution of higher education complies with the requirements of this
section and has a policy in place that provides as follows:
(1) For business entities that are not registered to
do business with the State of West Virginia, at the time of registration of a
business entity seeking to enter into an applicable contract with a state
institution of higher education, the state institution of higher education
requires the business entity to disclose in writing the interested parties of
the business entity before any applicable contracts are executed;
(2)
For business entities that are already registered to do business with the State
of West Virginia, and a business entity is seeking to enter into an applicable
contract with a state institution of higher education, the state institution of
higher education requires the business entity to disclose in writing the
interested parties of the business entity before any applicable contract is
executed;
(3)
Business entities are required to update any changes to the list of interested
parties of the business entity on a periodic basis; and
(4) The disclosures required by this section are
made in writing, by an authorized agent under oath and under penalty of
perjury.
??????????? (b) The state
institution of higher education shall provide a report to the ethics commission
on or before December 31 of each year listing all business entities that
received more than one-hundred thousand dollars from the institution of higher
education during the previous fiscal year, with an accompanying list of
interested parties provided by each such business entity.
(c) For
purposes of this section, the term ?interested parties? shall not include any
sub-contractors receiving less than $50,000 under an applicable contract.?
And,
By amending
the title of the bill to read as follows:
Com. Sub. for H. B. 2001- ?A Bill to amend and reenact ?6B-2-1,
?6B-2-2, ?6B-2-2a, ?6B-2-3a, ?6B-2-4, ?6B-2-5, ?6B-2-6 and ?6B-2-10 of the Code
of West Virginia, 1931, as amended; and to amend said code by adding thereto a
new chapter, designated ?6D-1-1, ?6D-1-2, ?6D-1-3 and ?6D-1-4, all relating to
ethics and transparency in government generally; providing that no more than
two members of the Ethics Commission shall be from the same state senatorial
district; providing for the disclosure of interested parties to a government
contract with an actual or estimated value of at least $100,000; defining
terms; prohibiting contracting with a state agency unless business entity submits
disclosure of interested parties; requiring submission of supplemental
disclosure within thirty days of completion or termination of the contract;
providing exceptions to the disclosure requirement for certain contracts;
requiring the Ethics Commission create disclosure form; specifying contents to
be included in the disclosure form; requiring state agencies to submit
completed forms to the Ethics Commission; requiring the Ethics Commission to
make disclosures publicly available; requiring the Ethics Commission to post
disclosures on the commission website when technologically able; providing
certain exceptions for state institutions of higher education; providing that
state institutions of higher education are excepted if they comply with certain
requirements and adopt certain policies; providing that institutions of higher
education shall provide the ethics Commission a listing of business entities
that received more than one hundred thousand dollars from the institution of
higher education; providing a definition of interested parties; authorizing members of the Ethics
Commission and members of the Probable Cause Review Board to participate and
vote via video conferencing; clarifying and expanding the violations in which a
complaint may be referred to the Probable Cause Review Board; clarifying that
the Probable Cause Review Board conducts investigations and not hearings to
determine probable cause; clarifying and expanding the violations in which a
complaint may be initiated by the Ethics Commission; ?clarifying that the Probable Cause Review
Board is the entity to receive evidence bearing on the issue of probable cause;
clarifying that the commission and review board may ask a respondent to
disclose specific amounts received from a source and request other detailed
information; clarifying that both the Ethics Commission and the Probable Cause
Review Board have subpoena power; clarifying that confidentiality provisions
apply to both the commission and the review board; specifying that at least six
members of the Ethics Commission approve of a decision on the truth or falsity
of the charges against a respondent and a decision to impose sanctions;
clarifying and expanding the violations in which sanctions may be imposed by
the Ethics Commission; prohibiting a public official or public employee from
showing favoritism or granting patronage in the employment or working
conditions of his or her relative or a person with whom he or she resides;
eliminating the voting prohibition on personnel matters involving a public
official?s spouse or relative; prohibiting public officials, except certain
members of the Legislature, from voting on the employment or working conditions
of the public official?s relative or person with whom the public official
resides; prohibiting public officials, except certain members of the
Legislature, from voting on the appropriation of moneys or award of contract to
a nonprofit corporation if the public official or an immediate family member is
employed by, or a compensated officer or board member of, the nonprofit;
providing that a public official shall publicly disclose his or her
relationship prior to the vote if he, she or an immediate family member is an
uncompensated officer or board member of the nonprofit; providing that a public
official?s recusal shall be reflected in the meeting minutes; clarifying the
timeframe in which a candidate for public office must file a financial
disclosure statement and providing an exception to filing such a financial
disclosure statement if the candidate has previously filed a statement for the
previous calendar year; and amending statutory cross-references to reflect
proper reference to other statutes.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 584),
and there were--yeas 99, nays 1, absent and not voting none, with the nays
being as follows:
??????????? Nays: Folk.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2001) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates as
follows:
??????????? Com.
Sub. for H. B. 2196, Relating to the Secondary Schools Athletic Commission.
??????????? Delegate Cowles moved that the House of
Delegates concur in the following amendment of the bill by the Senate, with further
amendment:
??????????? On page one, section twenty-five,
line three, after the word ?those?, by inserting the word ?public?.
?On page two, section twenty-five, line
thirty-six, by striking out the word ?extracurricular? and inserting in lieu
thereof the word ?interscholastic?.
On
page two, section twenty-five, line thirty-eight, after the word ?code?, by
inserting the words ?along with students who are enrolled in a registered
private or parochial school that does not have interscholastic programs?.
On
page three, section twenty-five, line forty-six, after the word ?home-schooled?,
by inserting a comma and the words ?private or parochial?.
On
page three, section twenty-five, line fifty-one, after the word ?secondary?, by
inserting a comma and the words ?private or parochial?.
On
page three, section twenty-five, line fifty-two, after the words ?home school?,
by inserting a comma and the words ?private or parochial?.
On
page three, section twenty-five, lines fifty-four and fifty-five, by striking
out the words ?Reasonable fees may be charged to the student to cover the costs
of participation in interscholastic programs.? and inserting in lieu thereof
the following: Homeschool, private, and parochial school students participating
in interscholastic programs shall be required to pay the same amount that
public school students pay when participating in these programs.?
On
page three, section twenty-five, after line fifty-five, by inserting the
following: One year following the effective date of this bill, the West Virginia
State Board of Education shall determine the additional costs, on a per student
basis, of non-enrolled students participating in interscholastic programs, and
shall make recommendations to the legislature how the costs of these
non-enrolled students have affected the school aid formula.?
And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for H. B. 2196 ? ?A Bill to amend and reenact ?18-2-25
of the Code of West Virginia, 1931, as amended, relating to the Secondary
Schools Athletic Commission; participation by home school, private and
parochial school students without an interscholastic program available;
providing that the private and parochial schools must be registered; setting
forth standards for each nonenrolled student participant to meet; providing
that each home school, private or parochial student pay the same fees
associated with participation as public school students; and providing that the
state board accumulate data as to the costs associated with the nonenrolled
students participating in interscholastic activities.?
??????????? Delegate Cowles moved to amend the
amendment of the Senate, on page one, section twenty-five, line one, by inserting
?(a)? before the word ?The?.
On
page one, section twenty-five, line seven, by inserting ?(b)? before the word
?The?.
On
page two, section twenty-five, line twenty-seven, by inserting ?(c)? before the
word ?The?.
On
page two, section, twenty-five, line thirty-five, by inserting ?(d)? before the
word ?Notwithstanding?.
And
On
page three, section twenty-five, line forty, after the words ?provided that? by adding a colon and by
striking the remainder of subsection one and inserting in lieu thereof the
following:
?(A)
The home school student?s average test results are within or above the fourth
stanine in all subject areas, and;
(B)
The private or parochial school students meet the same academic and attendance
requirements of public school students.?
??????????? Delegate Cowles moved to amend the
amendment of the Senate, by striking out the fourth paragraph and inserting in
lieu thereof the following:
??????????? On page three, section twenty-five,
line fifty-one, after the word ?secondary?, by inserting the words ?private or
parochial?.
And
In
the last paragraph, on the next to the last line, by striking out the word ?legislature?
and inserting in lieu thereof ?Legislature regarding?.
??????????? The motion to concur in the
amendment of the bill by the Senate, with further amendment by the House, was
adopted.
??????????? The bill, as amended by the Senate
and further amended by the House, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 585),
and there were--yeas 51, nays 48, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Ambler, Anderson, Arvon, Baldwin,
Bates, Brewer, Byrd, Canestraro, Caputo, Cooper, Deem, Diserio, Eldridge, E.
Evans, Ferro, Fleischauer, Fluharty, Hamilton, Hanshaw, Hartman, Hornbuckle,
Iaquinta, Isner, Lewis, Longstreth, Love, Lovejoy, Lynch, Marcum, Miley, R.
Miller, Moye, Pethtel, Pushkin, Pyles, Robinson, Rohrbach, R. Romine, Rowan,
Sponaugle, Storch, Summers, Thompson, Wagner, Westfall, White, Williams and
Zatezalo.
??????????? Absent and Not Voting: Maynard.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2196) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? H.
B. 2684, Imposing penalties for repeat violations of the prohibition
against driving under the influence on a suspended license.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
?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 $100 nor
more than $500; for the second offense, the person is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than $100 nor more than
$500; for the third or any subsequent offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail for a
period of not less than thirty days nor more than ninety days and shall be
fined not less than $150 nor more than $500.
(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 jail for a period of not less than thirty days nor more than six
months and shall be fined not less than $100 nor more than $500; for the second
offense, the person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for a period of not less than six months nor more
than one year and shall be fined not less than $1,000 nor more than $3,000; 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 $3,000 nor more than $5,000.
(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 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. 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 that person was lawfully suspended or revoked, the
division shall extend the period of the suspension or revocation for an
additional period of 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 jail for twenty-four hours or
shall be fined not less than $50 nor more than $500, or both; for the second
offense, the person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for a period of not less than thirty days nor more
than six months and shall be fined not less than $100 nor more than $500; 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 fined not less than $1,000
nor more than $5,000.
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.?
And,
By
amending the title of the bill to read as follows:
H. B. 2684 ? ?A Bill to amend and reenact ?17B-4-3
of the Code of West Virginia, 1931, as amended, relating to imposing enhanced
penalties for repeat violations of the prohibition against driving a motor
vehicle on any public highway of this state at a time when the 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.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 586),
and there were--yeas 99, nays none, absent and not voting 1, with the absent
and not voting being as follows:
??????????? Absent and Not Voting: Robinson.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (H. B. 2684) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2704, Prohibiting persons convicted of sexual offenses
against children with whom they hold positions of trust from holding
certification or license valid in public schools.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
??????????? On page two, section
On page
three, section ten, line twenty-six after the words ?by the?, by inserting the
words ?West Virginia?.
On page three, section ten, line twenty-eight, after the
word ?check?, by inserting a period.
And,
??????????? By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2704 ? ?A Bill to amend and reenact ?18A-3-6
and ?18A-3-10 of the Code of West Virginia, 1931, as amended, all relating
generally to the licensure or certification of teachers; providing for the
automatic revocation of a certificate or license for a teacher convicted of an
offense under chapter sixty-one, article eight-d, section five of the code; and
permitting the West Virginia Department of Education to require that a licensee
be fingerprinted for analysis by the West Virginia State Police for a state
criminal history record check through the central abuse registry and by the
Federal Bureau of Investigation for a national criminal history record check,
when the licensee has lived outside of the state for one year or more since
licensure, or when the department or school administrator reasonably believes
the licensee has not disclosed a felony conviction, a conviction of an offense
under chapter sixty-one, article eight-b of this code, or a conviction of an
offense similar to those in chapter sixty-one, article eight-b of this code
that have been established under the laws of any other state or the United
States.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 587),
and there were--yeas 100, nays none, absent and not voting none.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2704) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendment, of a concurrent resolution of the
House of Delegates as follows:
??????????? H. C. R. 21,
1SG Carl J. Crabtree Memorial Road.
??????????? On motion of Delegate Cowles, the House
of Delegates concurred in the following amendment of the resolution by the
Senate:
??????????? On page one, by striking out everything
after the title and inserting in lieu thereof the following:
?Whereas,
Carl J.? Crabtree was born on November 8,
1917, in Branchland, Lincoln County, West Virginia.? He was raised and educated in Logan County
and worked there until he enlisted in the military on August 27, 1940; and
Whereas,
Carl J.? Crabtree served in WW II in the
325 Glider Infantry Regiment, 82nd Airborne Division as a First
Sergeant; and
Whereas,
Carl J.? Crabtree was wounded on June 8,
1944, in France and was a prisoner of war; and
Whereas,
Carl J.? Crabtree?s decorations and
citations included the American Defense, American Theater, Good Conduct, Purple
Heart, European African Middle Eastern Theater Ribbon with one Bronze Star, Distinguished
Unit Badge, Croix De Guerre, Belgium Fourragere and Victory Medal; and
Whereas,
Carl J.? Crabtree served honorably in the
United States Army, ending his active service on May 24, 1946; and
Whereas,
Carl J.? Crabtree, after returning to
Logan County and Rossmore, raised a family and was employed among other
occupations in the coal mines; and
Whereas,
Carl J.? Crabtree died on December 6,
2004, survived by three daughters, Connie Herndon of Switzer, West Virginia,
and Janet Cook and Carolyn Greene of Rossmore, West Virginia.? He was preceded in death by his wife and a
daughter, Patricia Molnar; and
Whereas,
Naming a bridge in Logan County in U.S. Army 1SG Carl J.? Crabtree?s honor is an appropriate
recognition of his contributions to his country, state, community and Logan
County; therefore, be it
??????????? Resolved
by the Legislature of West Virginia:
That
the Division of Highways is hereby requested to name bridge number
23-119/15-0.06 (23A247) (37.81172, -81.99561), locally known as National Guard Armory
Bridge, carrying County Route 119/15 over Island Creek in Logan County the ?U.S.
Army 1SG Carl J. Crabtree Memorial Bridge?; and, be it
Further Resolved, That the Division of Highways is requested to have made and
be placed signs identifying bridge number 23-119/15-0.06 (23A247) (37.81172,
-81.99561), locally known as National Guard Armory Bridge, carrying County
Route 119/15 over Island Creek in Logan County the ?U.S. Army 1SG Carl J.
Crabtree 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.?
And,
??????????? By amending the title of the
resolution to read as follows:
??????????? H. C. R. 21 - ?Requesting the Division
of Highways to name bridge number 23-119/15-0.06 (23A247) (37.81172, -81.99561),
locally known as National Guard Armory Bridge, carrying County Route 119/15
over Island Creek in Logan County the ?U.S. Army 1SG Carl J. Crabtree Memorial
Bridge?.?
??????????? The resolution, as amended by the
Senate, was then adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendments, of a concurrent resolution of the
House of Delegates as follows:
??????????? H. C. R. 35,
Arnold Miller Memorial Bridge.
??????????? On motion of Delegate Cowles, the House
of Delegates concurred in the following amendment of the resolution by the
Senate:
On
page three, in the Resolved clause, line five, by striking out the words
?Arnold Miller? and inserting in lieu thereof the words ?U.S. Army PFC Arnold
Miller?.
On
page three, in the first Further Resolved clause, line eight, by striking out
the words ?Arnold Miller? and inserting in lieu thereof the words ?U.S. Army
PFC Arnold Miller?.
And,
??????????? By amending the title of the resolution
to read as follows:
??????????? H. C. R. 35 ? ?Requesting the Division of
Highways to name bridge number 20-77-83.84 (20A615), (38.19560, -81.47926),
locally known as WV.TPK/WV 79, carrying interstate 77/64 over Route 79/3 and
Cabin Creek in Kanawha County, the ?U.S. Army PFC Arnold
Miller Memorial Bridge?.?
??????????? The resolution, as amended by the
Senate, was then adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendment, of a concurrent resolution of the
House of Delegates as follows:
??????????? H. C. R. 58,
William C. Campbell Memorial Highway.
??????????? On
motion of Delegate Cowles, the House of Delegates concurred in the following
amendment of the resolution by the Senate:
On
page two, in the Resolved clause, line twenty-five, by striking out the word
?William? and inserting in lieu thereof the words ?U.S. Army CPT William?.
On
page three, in the first Further Resolved clause, line four, by striking out
the word ?William? and inserting in lieu thereof the words ?U.S. Army CPT
William?.
And,
??????????? By amending the title of the resolution
to read as follows:
??????????? H. C. R. 58 - ?Requesting the Division of
Highways to name the section of U.S. Route 60 in Cabell County from the Guyan
Golf and Country Club to the Huntington City Limits, the ?U.S. Army CPT William C. Campbell Memorial
Highway?.?
??????????? The resolution, as amended by the
Senate, was adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption by the Senate, with amendments, of a concurrent resolution of the
House of Delegates as follows:
??????????? H. C. R. 73,
U S Army Air Corps PVT William James Irwin, Memorial Bridge.
??????????? On motion of Delegate Cowles, the House
of Delegates concurred in the following amendment of the resolution by the
Senate:
On
page one, line thirteen, by striking out the word ?over? and inserting in lieu
thereof the words ?more than?.
On
page two, in the Resolved clause, line four, by striking out the words ?Bridge
Number:? and inserting in lieu thereof the words ?bridge number?.
On
page two, in the Resolved clause, line six, by striking out the words ?U S? and
inserting in lieu thereof the words ?U.S.?.
On
page two, in the first Further Resolved clause, line nine, by striking out the
words ?U S? and inserting in lieu thereof the words ?U.S.?.
And,
??????????? By amending the title of the
resolution to read as follows:
??????????? H. C. R. 73 - ?Requesting the Division of
Highways that bridge number 42-23-2.73 (42A045) (38.90822, -79.86085), locally
known as Southgate Bridge, carrying County Route 23 over Tygart Valley River in
Randolph County, West Virginia, be named the ?U.S. Army Air Corps PVT William
James Irwin, Memorial Bridge?.??
??????????? The
resolution, as amended by the Senate, was then adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? At the request of Delegate Cowles
and by unanimous consent, the House of Delegates returned to the Third Order of
Business for the purpose of receiving committee reports.
Committee Reports
On
motion for leave, a resolution was introduced (Originating in the Committee on the
Judiciary and reported with the recommendation that it be adopted), which was
read by its title, as follows:
??????????? By Delegates Shott, Hanshaw,
Overington, Lovejoy, Sobonya, O?Neal, Canestraro, R. Miller and Zatezalo:
??????????? H.
C. R. 142 - ?
Whereas, During the 2017 Regular Session, multiple bills were introduced
that warranted consideration by the Judiciary Committee, but, upon review and
examination of the law underlying the bill topic, became apparent that further
examination and more in depth consideration was necessary;
Whereas, The Legislative interim meetings and time prior to the 2018
Regular Session provide an opportunity for further research, evaluation and
comparison with other states, and receipt of information from individuals with
expertise in the particular topic area;
Whereas, For the past several years, matters and areas studied during the
interims have resulted in more comprehensive, deliberate and focused bills;
and?
Whereas, The topic areas contained in this resolution are not exclusive
nor preclude consideration of other topic areas during the interims, Therefore,
be it
Resolved by the Legislature of
West Virginia:
That the Joint Committee on the Judiciary is hereby requested to
study the following matters prior to the beginning of the next regular session:
(1) The procedures, appeal delays, financial impact, efficiencies,
and examination of the due process rights to persons appearing before the
Office of Administrative Hearings (OAH), along with consideration of
alternative means than the current utilization of the office, including the
impact upon the drunk driving rates, accidents, and fatalities since creation
of the current OAH system;
(2) Consideration of the powers, authority, efficiencies, and
financial impact of transferring the Medicaid Fraud Control Unit from the West
Virginia Department of Health and Human Resources Office of Inspector General
to a different Executive agency or establishing as an independent entity;
(3) The prevalence and impact of cyberbullying upon minors in the
age of social media, with specific consideration of emerging case law,
potential vagueness or overbreadth of criminal offenses; and a review of other
states that have attempted to address the issue within constitutional
parameters;?
(4) Review of general issues impacting retention and safety of
firefighters, including specifically, exposure to chemicals and other
substances that are known carcinogens that may lead to future illnesses,
including but not limited to, those referenced in House Bill No. 2498;
(5) Review of the current governance structure and efficiencies of
the Office of Emergency Services, including specifically, consideration of
other surrounding state structures and models; transfer of the Office to a
different Executive agency or as independent entity with elevation of Emergency
Medical Services Advisory Council; and examination of the dispatch procedures
and potential conflicts with regional medical command centers;
(6) Review and consideration of the establishment of a standing committee
or office under the purview of the Joint Committee on Government and Finance,
as proposed in House Bill 2383; together with consideration of general
procedures and efficiencies for redistricting following census years;
(7) Review and consideration of a constitutional amendment,
similar in nature to House Joint Resolution 24, relating to education,
including specifically, providing for the election of members of the State
Board of Education;
(8) Review and consideration of improper public access to personal
identifiable information in the records of charitable institutions retained by
governmental agencies, including specifically consideration of non-disclosure
and redaction of certain information contained within a charitable donor record
as contemplated in House Bill 3079;
(9) Review and consideration of the foster care system and
procedures in the State, including general review of the system, the legal
burdens and obstacles within the current foster care system; the treatment and
oversight of children placed in foster care, with specific emphasis on the
proposed bill of rights for children in foster care contemplated by House Bill
2088 and proposed bill of rights for foster parents contemplated by House Bill
2089;
(10) Review and consideration of the efficiencies and operation of
the Public Defender Services system, including specific emphasis on the impact
on panel attorneys; the timely payment to panel attorneys; the rates currently
paid; record keeping by panel attorneys; identification of fraud and
overbilling by panel attorneys; efficiencies of current voucher system;
historic underfunding of Public Defender Services; and potential availability
of insurance under the West Virginia Public Employees Insurance Agency;
(11) Examination and consideration of work requirements for
applicants for the Supplemental Nutrition Assistance Program (SNAP); along with
controls and methods for the detection of fraud; as contemplated by Senate Bill
60, including more general review and consideration of the welfare system in
this state, including emphasis on federal guidelines, waivers, and financial
eligibility;
(12) Review and examination of campaign finance laws contained in
Chapter 3 of the code, with consideration of long-term review, reorganization
and revision of the election and campaign finance statutes; including
specifically consideration of differences between the state and federal laws as
to monetary donation limits, relationship with political party caucuses and
political action committees;
(13) Review and examination of the federal regulations relating to
drones and other unmanned aircraft systems, with emphasis on the protection of
personal privacy, along with lawful restrictions upon the use of such unmanned
aircraft systems, as contemplated by House Bill 3005 and Senate Bill 9;
(14) Review and examination of the penalties under our criminal
justice laws, with an emphasis on the establishment of a commission to study
and make recommendations on the reorganization and revision of penalties and
offenses under Chapter 61 of the code, including consideration of capital
punishment as a penalty; and, be it
Further Resolved, That the Joint Committee on the Judiciary may consult or act in
conjunction with other Joint Standing Committees of the Legislature in
consideration of the foregoing topic areas, and any additional topic areas not
identified herein, that the Joint Committee may study or examine during an
interim meeting; and, be it
Further Resolved, That, following review and study of a topic area, the Joint
Committee on the Judiciary may draft and propose legislation for introduction
during the 2018 legislative session, and may make such other recommendations to
other Joint Standing Committees of the Legislature as warranted or deemed
appropriate; and, be it
Further Resolved, That
the expenses necessary to conduct the study of these topic areas, along with
other later identified topic areas, be paid from legislative appropriations
from the Joint Committee on Government and Finance?.
??????????? At the respective requests of
Delegate Cowles, and by unanimous consent, the resolution (H. C. R. 142) was
taken up for immediate consideration and adopted.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Mr.
Speaker, Mr. Armstead, Chair of the Committee on Rules, submitted the following
report, which was received:
Your
Committee on Rules has had under consideration:
H. C. R. 129, Study
of the West Virginia Office on Drug Policy,
H. C. R. 130,
Feasibility study of selling West Virginia?s state owned mental health
facilities,
H. C. R. 131, Study
for Preauthorization procedures legislation,
H. C. R. 132, Feasibility
study of the creation of an ?Advisory Council on Rare Diseases,
H. C. R. 133, Study
of tobacco/smoking harm reduction policies,
H. C. R. 134,
Feasibility study of dividing the Department of Health and Human Resources,
H. C. R. 135, Study
of the structure and duties of the West Virginia Medical Examiner?s Office,
H. C. R. 136, Study
of the issues, needs and challenges facing senior citizens,
S. C. R. 33, US Army Ranger SGT
Richard E. Arden Memorial Bridge,
S. C. R. 42, Five Champ Brothers
Bridge,
And,
S. C. R. 49, Erecting signs in
Kanawha County declaring Home of Ralph Maddox 1980 NHPA Hall of Fame,
And
reports the same back with the recommendation that they each be adopted.
??????????? At the request of Delegate Cowles,
and by unanimous consent, the resolutions (H. C. R. 129, H. C. R. 130, H. C. R.
131, H. C. R. 132, H. C. R. 133, H. C. R. 134, H. C. R.135, H. C. R. 136, S. C.
R. 33, S. C. R. 42 and S. C. R. 49) were each taken up for immediate
consideration, reported by the Clerk and adopted.
??????????? Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates and request
concurrence therein on those requiring the same.
At 10:20 p.m.,
on motion of Delegate Cowles, the House of Delegates recessed for fifteen
minutes.
* * * * * * *
Evening Session
* * * * * * *
-Continued-
Conference Committee
Reports
Delegate Sobonya, from the Committee of Conference
on matters of disagreement between the two houses, as to
Com.
Sub. for H. B. 2579, Increasing the penalties for transporting
controlled substances.
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
That both houses recede from their
respective positions as to the amendment of the Senate striking out everything
following the enacting clause and inserting new language, and agree to the same
as follows:
?That ?60A-4-409 of the Code of West
Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 4. OFFENSES AND PENALTIES.
??60A-4-409. Prohibited acts ?
Transportation of controlled substances into state; penalties.
(a)
Except as otherwise authorized by the provisions of this code, it shall be
is unlawful for any person to transport or cause to be transported into
this state a controlled substance with the intent to deliver the same or with
the intent to manufacture a controlled substance.
(b) Any
person who violates this section with respect to:
(1) A
controlled substance classified in Schedule I or II, which is a narcotic drug,
shall be guilty of a felony and, upon conviction, may be imprisoned in the
state correctional facility for not less than one year nor more than fifteen
years, or fined not more than $25,000, or both;
(2) Any
other controlled substance classified in Schedule I, II or III shall be guilty
of a felony and, upon conviction, may be imprisoned in the state correctional
facility for not less than one year nor more than five ten years,
or fined not more than $15,000, or both: Provided,
That for the substance marihuana, as scheduled in subdivision (24) subsection
(d), section two hundred four, article two of this chapter, the penalty, upon
conviction of a violation of this subsection, shall be that set forth in
subdivision (3) of this subsection.
(3) A
substance classified in Schedule IV shall be guilty of a felony and, upon
conviction, may be imprisoned in the state correctional facility for not less
than one year nor more than three five years, or fined not more
than $10,000, or both;
(4) A
substance classified in Schedule V shall be guilty of a misdemeanor and, upon
conviction, may be confined in jail for not less than six months nor more than
one year, or fined not more than $5,000, or both: Provided, That for
offenses relating to any substance classified as Schedule V in article ten of
this chapter, the penalties established in said article apply.
(c)
Notwithstanding the provisions of subsection (b) of this section, any person
violating or causing a violation of subsection (a) of this section involving one kilogram or more of
heroin, five kilograms or more of cocaine or cocaine base, one hundred grams or
more of phencyclidine, ten grams or more of lysergic acid diethylamide, or
fifty grams or more of methamphetamine or five hundred grams of a substance or
material containing a measurable amount of methamphetamine, is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for a determinate sentence of not less than two nor more
than thirty years.
(d) Notwithstanding the provisions of subsection (b) of
this section, any person violating or causing a violation of subsection (a) of
this section involving one hundred but fewer than 1000 grams of heroin, not
less than five hundred but fewer than 5,000 grams of cocaine or cocaine base,
not less than ten but fewer than ninety-nine grams of phencyclidine, not less
than one but fewer than ten grams of lysergic acid diethylamide, or not less
than five but fewer than fifty grams of methamphetamine or not less than fifty
grams but fewer than five hundred grams of a substance or material containing a
measurable amount of methamphetamine, is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional facility for a
determinate sentence of not less than two nor more than twenty years.
(e) Notwithstanding the
provisions of subsection (b) of this section, any person violating or
attempting to violate the provisions of subsection (a) of this section
involving not less than ten grams nor more than one hundred grams of heroin,
not less than fifty grams nor more than five hundred grams of cocaine or
cocaine base, not less than two grams nor more than ten grams of phencyclidine,
not less than two hundred micrograms nor more than one gram of lysergic acid
diethylamide, or not less than four hundred ninety nine milligrams nor more
than five grams of methamphetamine or not less than twenty grams nor more than
fifty grams of a substance or material containing a measurable amount of
methamphetamine is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for a determinate sentence of not
less than two nor more than fifteen years.
(c)(f) The
offense established by this section shall be in addition to and a separate and
distinct offense from any other offense set forth in this code.?
And,
That both houses recede from their
respective positions as to the title of the bill and agree to a new title to
read as follows:
Com.
Sub. for H. B. 2579- ?A Bill to amend and reenact ?60A-4-409 of the
Code of West Virginia, 1931, as amended, relating to the offense of
transporting illegal substances into the state generally; increasing penalties
for illegal transportation of controlled substances into the state; clarifying
that causing illegal transportation of controlled substances into the state is
prohibited; providing for a differing penalty for an offense involving
marihuana; and creating enhanced criminal penalties for transporting certain
controlled substances into the state based on quantity.?
????????????????? Respectfully
submitted,
??????????? Kelli Sobonya, Chair?????????????????????????????????????? ??? Ryan J. Weld, Chair
??????????? Ray Hollen,???????????????????????????????????????????????????? ??? Mark R. Maynard,
??????????? Rodney Miller,???????????????????????????????????????????????? ??? Glenn Jeffries,
??????????? Conferees
on the part???????????????????????????????????? ??? Conferees on the part
??????????? ?? of the House of Delegates.????????????????????????? ??????? of the Senate.
??????????? On
motion of Delegate Sobonya, the report of the Committee of Conference was
adopted.
??????????? The bill, as amended by said report,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 588),
and there were--yeas 91, nays 8, absent and not voting 1, with the nays and
absent and not voting being as follows:
??????????? Nays: Criss, Folk, Hornbuckle,
McGeehan, Pushkin, Robinson, Rowe and Sponaugle.
??????????? Absent and Not Voting: Upson.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2579) passed.
??????????? Ordered, That the Clerk of the House communicate to the
Senate the action of the House of Delegates and request concurrence therein.
Delegate R. Miller, from the Committee
of Conference on matters of disagreement between the two houses, as to
Com.
Sub. for H. B. 2585, Creating felony crime of conducting financial
transactions involving proceeds of criminal activity.
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
That the House agree to the amendment of
the Senate to the bill striking out everything after the enacting clause, and
that both houses agree to the following amendments to the Senate amendment, as
follows:
On page three, section two, line
fifteen, by striking out the phrase ?a determinate term of?.
And,
On page four, section two, line
twenty-one, by striking out the phrase ?a determinate term of?.
And,
The House agrees to the Senate title.
????????????????? Respectfully
submitted,
??????????? Kelli Sobonya, Chair????????????????????????????????????? ??? Ryan J. Weld, Chair
??????????? Ray Hollen,???????????????????????????????????????????????????? ??? Mark R. Maynard,
??????????? Rodney Miller,???????????????????????????????????????????????? ??? Glenn Jeffries,
??????????? Conferees
on the part???????????????????????????????????? ??? Conferees on the part
??????????? ?? of the House of Delegates.????????????????????????? ??????? of the Senate.
??????????? On
motion of Delegate R. Miller, the report of the Committee of Conference was
adopted.
??????????? The bill, as amended by said report,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 589),
and there were--yeas 98, nays 2, absent and not voting none, with the nays
being as follows:
??????????? Nays: Folk and McGeehan.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2585) passed.
??????????? Ordered, That the Clerk of the House communicate to the Senate the action of the
House of Delegates and request concurrence therein.
Delegate Hollen, from the Committee of Conference
on matters of disagreement between the two houses, as to
Com.
Sub. for H. B. 2329, Prohibiting the production,
manufacture or possession of fentanyl.
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
That both houses recede from their
respective positions as to the amendment of the Senate striking out everything
following the enacting clause and inserting new language, and agree to the same
as follows
?That ?60A-1-101 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; that ?60A-2-204 of said
code be amended and reenacted; and that said code be amended by adding thereto
a new section, designated ?60A-4-414, all to read as follows:
ARTICLE 1. DEFINITIONS.
?60A-1-101. Definitions.
As
used in this act:
(a)
?Administer? means the direct application of a controlled substance whether by
injection, inhalation, ingestion or any other means to the body of a patient or
research subject by:
(1)
A practitioner (or, in his or her presence, by his or her authorized agent); or
(2)
The patient or research subject at the direction and in the presence of the
practitioner.
(b)
?Agent? means an authorized person who acts on behalf of or at the direction of
a manufacturer, distributor or dispenser. It does not include a common or
contract carrier, public warehouseman or employee of the carrier or
warehouseman.
(c)
?Analogue? means a substance that, in relation to a controlled substance, has a
substantially similar chemical structure.
(d)
?Bureau? means the ?Bureau of Narcotics and Dangerous Drugs, United States
Department of Justice? or its successor agency.
(e)
?Controlled substance? means a drug, substance or immediate precursor in
Schedules I through V of article two of this chapter.
(f)
?Counterfeit substance? means a controlled substance which, or the container or
labeling of which, without authorization, bears the trademark, trade name or
other identifying mark, imprint, number or device, or any likeness thereof, of
a manufacturer, distributor or dispenser other than the person who in fact
manufactured, distributed or dispensed the substance.
(g)
?Imitation controlled substance? means: (1) A controlled substance which is
falsely represented to be a different controlled substance; (2) a drug or
substance which is not a controlled substance but which is falsely represented
to be a controlled substance; or (3) a controlled substance or other drug or
substance or a combination thereof which is shaped, sized, colored, marked,
imprinted, numbered, labeled, packaged, distributed or priced so as to cause a
reasonable person to believe that it is a controlled substance.
(h)
?Deliver? or ?delivery? means the actual, constructive or attempted transfer
from one person to another of: (1) A controlled substance, whether or not there
is an agency relationship; (2) a counterfeit substance; or (3) an imitation
controlled substance.
(i)
?Dispense? means to deliver a controlled substance to an ultimate user or
research subject by or pursuant to the lawful order of a practitioner, including
the prescribing, administering, packaging, labeling or compounding necessary to
prepare the substance for that delivery.
(j)
?Dispenser? means a practitioner who dispenses.
(k)
?Distribute? means to deliver, other than by administering or dispensing, a
controlled substance, a counterfeit substance or an imitation controlled
substance.
(l)
?Distributor? means a person who distributes.
(m)
?Drug? means: (1) Substances recognized as drugs in the official ?United States
Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or
official National Formulary?, or any supplement to any of them; (2) substances
intended for use in the diagnosis, cure, mitigation, treatment or prevention of
disease in man or animals; (3) substances (other than food) intended to affect
the structure or any function of the body of man or animals; and (4) substances
intended for use as a component of any article specified in subdivision (1),
(2) or (3) of this subdivision. It does not include devices or their components,
parts or accessories.
(n)
?Fentanyl analog or derivative? means any substance which has a chemical
structure which is substantially similar to the chemical structure of fentanyl,
including any of its salts, isomers, or salts of isomers, including any
chemical compound or mixture. For purposes of this chapter, the term ?fentanyl
derivative or analog? includes any fentanyl analog that is not otherwise
scheduled in this chapter.
(n) (o) ?Immediate
derivative? means a substance which is the principal compound or any analogue
of the parent compound manufactured from a known controlled substance primarily
for use and which has equal or similar pharmacologic activity as the parent
compound which is necessary to prevent, curtail or limit manufacture.
(o) (p) ?Immediate
precursor? means a substance which is the principal compound commonly used or
produced primarily for use and which is an immediate chemical intermediary used
or likely to be used in the manufacture of a controlled substance, the control
of which is necessary to prevent, curtail or limit manufacture.
(p) (q) ?Manufacture?
means the production, preparation, propagation, compounding, conversion or
processing of a controlled substance, either directly or indirectly or by
extraction from substances of natural origin, or independently by means of
chemical synthesis, or by a combination of extraction and chemical synthesis,
and includes any packaging or repackaging of the substance or labeling or
relabeling of its container, except that this term does not include the
preparation, compounding, packaging or labeling of a controlled substance:
(1)
By a practitioner as an incident to his or her administering or dispensing of a
controlled substance in the course of his or her professional practice; or
(2)
By a practitioner, or by his or her authorized agent under his or her
supervision, for the purpose of, or as an incident to, research, teaching or
chemical analysis and not for sale.
(q) (r) ?Marijuana?
means all parts of the plant ?Cannabis sativa L.?, whether growing or not; the
seeds thereof; the resin extracted from any part of the plant; and every
compound, manufacture, salt, immediate derivative, mixture or preparation of
the plant, its seeds or resin. It does not include the mature stalks of the
plant, fiber produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, immediate derivative, mixture or
preparation of the mature stalks (except the resin extracted therefrom), fiber,
oil or cake, or the sterilized seed of the plant which is incapable of
germination.
(r) (s) ?Narcotic drug?
means any of the following, whether produced directly or indirectly by
extraction from substances of vegetable origin or independently by means of
chemical synthesis, or by a combination of extraction and chemical synthesis:
(1)
Opium and opiate and any salt, compound, immediate derivative or preparation of
opium or opiate.
(2)
Any salt, compound, isomer, immediate derivative or preparation thereof which
is chemically equivalent or identical with any of the substances referred to in
paragraph (1) of this subdivision, but not including the isoquinoline alkaloids
of opium.
(3)
Opium poppy and poppy straw.
(4)
Coca leaves and any salt, compound, immediate derivative or preparation of coca
leaves and any salt, compound, isomer, immediate derivative or preparation
thereof which is chemically equivalent or identical with any of these
substances, but not including decocainized coca leaves or extractions of coca
leaves which do not contain cocaine or ecgonine.
(s) (t) ?Opiate? means
any substance having an addiction-forming or addiction-sustaining liability
similar to morphine or being capable of conversion into a drug having
addiction-forming or addiction-sustaining liability. It does not include,
unless specifically designated as controlled under section two hundred one,
article two of this chapter, the dextrorotatory isomer of
3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does not
include its racemic and levorotatory forms.
(t) (u) ?Opium poppy?
means the plant of the species ?Papaver somniferum L.?, except its seeds.
(u) (v) ?Person? means
individual, corporation, government or governmental subdivision or agency,
business trust, estate, trust, partnership or association, or any other legal
entity.
(v) (w) ?Placebo? means
an inert medicament or preparation administered or dispensed for its
psychological effect, to satisfy a patient or research subject or to act as a
control in experimental series.
(w) (x) ?Poppy straw?
means all parts, except the seeds, of the opium poppy after mowing.
(x) (y) ?Practitioner?
means:
(1)
A physician, dentist, veterinarian, scientific investigator or other person
licensed, registered or otherwise permitted to distribute, dispense, conduct
research with respect to, or to administer a controlled substance in the course
of professional practice or research in this state.
(2)
A pharmacy, hospital or other institution licensed, registered or otherwise
permitted to distribute, dispense, conduct research with respect to, or to
administer a controlled substance in the course of professional practice or
research in this state.
(y) (z) ?Production?
includes the manufacture, planting, cultivation, growing or harvesting of a
controlled substance.
(z) (aa) ?State?, when
applied to a part of the United States, includes any state, district,
commonwealth, territory, insular possession thereof and any area subject to the
legal authority of the United States of America.
(aa) (bb) ?Ultimate user?
means a person who lawfully possesses a controlled substance for his or her own
use or for the use of a member of his or her household or for administering to
an animal owned by him or her or by a member of his or her household.
ARTICLE 2. STANDARDS AND
SCHEDULES.
?60A-2-204. Schedule I.
(a)
Schedule I shall consist of the drugs and other substances, by whatever
official name, common or usual name, chemical name, or brand name designated,
listed in this section.
(b)
Opiates. Unless specifically excepted or unless listed in another schedule, any
of the following opiates, including their isomers, esters, ethers, salts and
salts of isomers, esters and ethers, whenever the existence of such isomers,
esters, ethers and salts is possible within the specific chemical designation
(for purposes of subdivision (34) of this subsection only, the term isomer includes
the optical and geometric isomers):
(1) Acetyl-alpha-methylfentanyl
(N-[1-(1-methyl-2-phenethyl) -4-piperidinyl]--phenylacetamide);
(2)
Acetylmethadol;
(3)
Allylprodine;
(4) Alphacetylmethadol (except levoalphacetylmethadol also
known as levo-alpha-acetylmethadol, levomethadyl acetate, or LAAM);
(5)
Alphameprodine;
(6)
Alphamethadol;
(7)Alpha-methylfentanyl
(N-[1-(alpha-methyl-beta-phenyl) ethyl-4-piperidyl] propionanilide;
1-(1-methyl-2-phenylethyl)-4-(?
propanilido) piperidine);
(8) Alpha-methylthiofentanyl (N-[1-methyl-2-(2-thienyl) ethyl-
4-piperidinyl]--phenylpropanamide);
(9)
Benzethidine;
(10)
Betacetylmethadol;
(11) Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-phenethyl) -4-
piperidinyl]-N-phenylpropanamide);
(12)
Beta-hydroxy-3-methylfentanyl (other name: N-[1-(2-
hydroxy-2-phenethyl)-3-methyl-4-piperidinyl]-N-phenylpropanamide);
(13)
Betameprodine;
(14)
Betamethadol;
(15)
Betaprodine;
(16)
Clonitazene;
(17)
Dextromoramide;
(18)
Diampromide;
(19)
Diethylthiambutene;
(20)
Difenoxin;
(21)
Dimenoxadol;
(22)
Dimepheptanol;
(23)
Dimethylthiambutene;
(24)
Dioxaphetyl butyrate;
(25)
Dipipanone;
(26)
Ethylmethylthiambutene;
(27)
Etonitazene;
(28)
Etoxeridine;
(29)
Fentanyl analog or derivative, as that term is defined in article one of this chapter: Provided, That fentanyl and carfentanil
remains a Schedule II substance, as set forth in section two hundred six of
this article;
(29) (30) Furethidine;
(30) (31)
Hydroxypethidine;
(31) (32) Ketobemidone;
(32) (33) Levomoramide;
(33) (34) Levophenacylmorphan;
(34) (35)
3-Methylfentanyl (N-[3-methyl-1-(2-phenylethyl)-4-
piperidyl]-N-phenylpropanamide);
(35) (36) 3-methylthiofentanyl (N-[3-methyl-1-(2-thienyl) ethyl-4-
piperidinyl]--phenylpropanamide);
(36) (37) Morpheridine;
(37) (38) MPPP
(1-methyl-4-phenyl-4-propionoxypiperidine);
(38) (39)
Noracymethadol;
(39) (40)
Norlevorphanol;
(40) (41) Normethadone;
(41) (42) Norpipanone;
(42) (43) Para-fluorofentanyl (N-(4-fluorophenyl)-N-[1-(2-
phenethyl)-4-piperidinyl] propanamide);
(43) (44)
PEPAP(1-(-2-phenethyl)-4-phenyl-4-acetoxypiperidine);
(44) (45) Phenadoxone;
(45) (46) Phenampromide;
(46) (47) Phenomorphan;
(47) (48) Phenoperidine;
(48) (49) Piritramide;
(49) (50) Proheptazine;
(50) (51) Properidine;
(51) (52) Propiram;
(52) (53) Racemoramide;
(53) (54) Thiofentanyl
(N-phenyl-N-[1-(2-thienyl) ethyl-4- piperidinyl]-propanamide);
(54) (55) Tilidine;
(55) (56) Trimeperidine.
?(c) Opium derivatives. -- Unless
specifically excepted or unless listed in another schedule, any of the
following opium immediate derivatives, its salts, isomers and salts of isomers
whenever the existence of such salts, isomers and salts of isomers is possible
within the specific chemical designation:
(1)
Acetorphine;
(2)
Acetyldihydrocodeine;
(3)
Benzylmorphine;
(4)
Codeine methylbromide;
(5)
Codeine-N-Oxide;
(6)
Cyprenorphine;
(7)
Desomorphine;
(8)
Dihydromorphine;
(9)
Drotebanol;
(10)
Etorphine (except HCl Salt);
(11)
Heroin;
(12)
Hydromorphinol;
(13)
Methyldesorphine;
(14)
Methyldihydromorphine;
(15)
Morphine methylbromide;
(16)
Morphine methylsulfonate;
(17)
Morphine-N-Oxide;
(18)
Myrophine;
(19)
Nicocodeine;
(20)
Nicomorphine;
(21)
Normorphine;
(22)
Pholcodine;
(23)
Thebacon.
(d)
Hallucinogenic substances. -- Unless specifically excepted or unless
listed in another schedule, any material, compound, mixture or preparation,
which contains any quantity of the following hallucinogenic substances, or
which contains any of its salts, isomers and salts of isomers, whenever the
existence of such salts, isomers, and salts of isomers is possible within the
specific chemical designation (for purposes of this subsection only, the term ?isomer?
includes the optical, position and geometric isomers):
(1)
Alpha-ethyltryptamine; some trade or other names: etryptamine; Monase;
alpha-ethy-1H-indole-3-ethanamine; 3-(2- aminobutyl) indole; alpha-ET; and AET;
(2)
4-bromo-2, 5-dimethoxy-amphetamine; some trade or other names: 4-bromo-2,5-dimethoxy-alpha-methylphenethylamine;
4-bromo- 2,5-DMA;
(3)
4-Bromo-2,5-dimethoxyphenethylamine; some trade or other names:
2-(4-bromo-2,5-dimethoxyphenyl)-1-aminoethane; alpha- desmethyl DOB; 2C-B,
Nexus;
(4)(A)
N-(2-Methoxybenzyl)-4-bromo-2, 5-dimethoxyphenethylamine. The substance has the
acronym 25B-NBOMe.
(B)
2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl) ethanamine (25C-NBOMe).
(C)
2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl) ethanamine (25I-NBOMe)
(5)
2,5-dimethoxyamphetamine; some trade or other names:
2,5-dimethoxy-alpha-methylphenethylamine; 2,5-DMA;
(6)
2,5-dimethoxy-4-ethylamphet-amine; some trade or other names: DOET;
(7)
2,5-dimethoxy-4-(n)-propylthiophenethylamine (other name: 2C-T-7);
(8)
4-methoxyamphetamine; some trade or other names:
4-methoxy-alpha-methylphenethylamine; paramethoxyamphetamine; PMA;
(9)
5-methoxy-3, 4-methylenedioxy-amphetamine;
(10)
4-methyl-2,5-dimethoxy-amphetamine; some trade and other names:
4-methyl-2,5-dimethoxy-alpha-methylphenethylamine; ?DOM?; and ?STP?;
(11)
3,4-methylenedioxy amphetamine;
(12)
3,4-methylenedioxymethamphetamine (MDMA);
(13)
3,4-methylenedioxy-N-ethylamphetamine (also known as ? ethyl-alpha-methyl-3,4
(methylenedioxy) phenethylamine, N-ethyl MDA, MDE, MDEA);
(14)
N-hydroxy-3,4-methylenedioxyamphetamine (also known as ? hydroxy-alpha-methyl-3,4
(methylenedioxy) phenethylamine, and ? hydroxy MDA);
(15)
3,4,5-trimethoxy amphetamine;
(15)
(16) 5-methoxy-N, N-dimethyltryptamine (5-MeO-DMT);
(17)
Alpha-methyltryptamine (other name: AMT);
(18)
Bufotenine; some trade and other names:
3-(beta-Dimethylaminoethyl)-5-hydroxyindole;3-(2-dimethylaminoethyl)
-5-indolol; N, N-dimethylserotonin; 5-hydroxy-N,N- dimethyltryptamine; mappine;
(19)
Diethyltryptamine; sometrade and other names: N, N-Diethyltryptamine; DET;
(20)
Dimethyltryptamine; some trade or other names: DMT;
(21)
5-Methoxy-N, N-diisopropyltryptamine (5-MeO-DIPT);
(22)
Ibogaine; some trade and other names: 7-Ethyl-6, 6 Beta, 7, 8, 9, 10, 12,
13-octahydro-2-methoxy-6, 9-methano-5H- pyrido [1?, 2?: 1, 2] azepino [5,4-b]
indole; Tabernanthe iboga;
(23)
Lysergic acid diethylamide;
(24)
Marijuana;
(25)
Mescaline;
(26)
Parahexyl-7374; some trade or other names: 3-Hexyl -1-hydroxy-7, 8, 9,
10-tetrahydro-6, 6, 9-trimethyl-6H-dibenzo [b,d] pyran; Synhexyl;
(27)
Peyote; meaning all parts of the plant presently classified botanically as
Lophophora williamsii Lemaire, whether growing or not, the seeds thereof, any
extract from any part of such plant, and every compound, manufacture, salts,
immediate derivative, mixture or preparation of such plant, its seeds or
extracts;
(28)
N-ethyl-3-piperidyl benzilate;
(29)
N-methyl-3-piperidyl benzilate;
(30)
Psilocybin;
(31)
Psilocyn;
(32)
Tetrahydrocannabinols; synthetic equivalents of the substances contained in the
plant, or in the resinous extractives of Cannabis, sp. and/or synthetic
substances, immediate derivatives and their isomers with similar chemical
structure and pharmacological activity such as the following:
delta-1
Cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6
Cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3,4
Cis or trans tetrahydrocannabinol, and its optical isomers;
(Since
nomenclature of these substances is not internationally standardized, compounds
of these structures, regardless of numerical designation of atomic positions
covered).
(33)
Ethylamine analog of phencyclidine; some trade or other names:
N-ethyl-1-phenylcyclohexylamine, (1-phenylcyclohexyl) ethylamine,
N-(1-phenylcyclohexyl) ethylamine, cyclohexamine, PCE;
(34)
Pyrrolidine analog of phencyclidine; some trade or other names:
1-(1-phenylcyclohexyl)-pyrrolidine, PCPy, PHP;
(35)
Thiophene analog of phencyclidine; some trade or other names:
1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2-thienylanalog of phencyclidine;
TPCP, TCP;
(36)
1[1-(2-thienyl)cyclohexyl]pyrroldine; some other names: TCPy.
(37)
4-methylmethcathinone (Mephedrone);
(38)
3,4-methylenedioxypyrovalerone (MDPV);
(39)
2-(2,5-Dimethoxy-4-ethylphenyl)ethanamine (2C-E);
(40)
2-(2,5-Dimethoxy-4-methylphenyl)ethanamine (2C-D)
(41)
2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine (2C-C)
(42)
2-(4-Iodo-2,5-dimethoxyphenyl)ethanamine (2C-I)
(43)
2-[4-(Ethylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-2)
(44)
2-[4-(Isopropylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-4)
(45)
2-(2,5-Dimethoxyphenyl)ethanamine (2C-H)
(46)
2-(2,5-Dimethoxy-4-nitro-phenyl) ethanamine (2C-N)
(47)
2-(2,5-Dimethoxy-
4-(n)-propylphenyl)ethanamine
(2C-P)
(48)
3,4-Methylenedioxy-N-methylcathinone (Methylone)
(49)
(2,5-dimethoxy-4-(n)-propyltghiophenethylamine (2C-T-7, itsoptical isomers,
salts and salts of isomers
(50)
5-methoxy-N, N-dimethyltryptamine some trade or other names:
5-methoxy-3-[2-(dimethylamino)ethyl]indole; 5-MeO-DMT(5-MeO-DMT)
(51)
Alpha-methyltryptamine (other name: AMT)
(52)
5-methoxy-N, N-diisopropyltryptamine (other name: 5-MeO-DIPT)
(53)
Synthetic Cannabinoids as follows:
(A)
2-[(1R,3S)-3-hydroxycyclohexyl]-5- (2-methyloctan-2-yl) phenol) {also known as
CP 47,497 and homologues};
(B)
rel-2-[(1S,3R)-3-hydroxycyclohexyl] -5-(2-methylnonan-2-yl) phenol {also known
as CP 47,497-C8 homolog};
(C)
[(6aR)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)-6a,
7,10,10a-tetrahydrobenzo[c]chromen-1-ol)] {also known as HU-210};
(D)
(dexanabinol);
(6aS,10aS)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo
l[c]chromen-1-ol)
{also known as HU-211};
(E)
1-Pentyl-3-(1-naphthoyl) indole {also known as JWH-018};
(F)
1-Butyl-3-(1-naphthoyl) indole {also known as JWH-073};
(G)
(2-methyl-1-propyl-1H-indol-3-yl)-1-napthalenyl-methanone {also known as
JWH-015};
(H)
(1-hexyl-1H-indol-3-yl)-1-naphthalenyl-methanone {also known as JWH-019};
(I)
[1-[2-(4-morpholinyl) ethyl] -1H-indol-3-yl]-1-naphthalenyl-methanone {also
known as JWH-200};
(J)
1-(1-pentyl-1H-indol-3-yl)-2-(3-hydroxyphenyl)-ethanone {also known as
JWH-250};
(K)
2-((1S,2S,5S)-5-hydroxy-2- (3-hydroxtpropyl)cyclohexyl)
-5-(2-methyloctan-2-yl)phenol {also known as CP 55,940};
(L)
(4-methyl-1-naphthalenyl) (1-pentyl-1H-indol-3-yl) -methanone {also known as
JWH-
122};
(M)
(4-methyl-1-naphthalenyl) (1-pentyl-1H-indol-3-yl) -methanone {also known as
JWH-
398;
(N)
(4-methoxyphenyl)(1-pentyl-1H-indol-3-yl)methanone {also known as RCS-4};
(O)
1-(1-(2-cyclohexylethyl) -1H-indol-3-yl) -2-(2-methoxyphenyl) ethanone {also
known as RCS-8};
(P)
1-pentyl-3-[1-(4-methoxynaphthoyl) indole (JWH-081);
(Q)
1-(5-fluoropentyl)-3-(1-naphthoyl) indole (AM2201); and
(R)
1-(5-fluoropentyl)-3-(2-iodobenzoyl) indole (AM694).
(54)
Synthetic cannabinoids or any material, compound, mixture or preparation which
contains any quantity of the following substances, including their analogues,
congeners, homologues, isomers, salts and salts of analogues, congeners,
homologues and isomers, as follows:
(A)
CP 47,497 AND homologues, 2-[(1R,3S)-3-Hydroxycyclohexyl]-5-(2-methyloctan-2-
YL)
phenol);
(B)
HU-210,
[(6AR,10AR)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-Methyloctan-2-YL)-6A,7,10,
10A-tetrahydrobenzo[C] chromen-1-OL)];
(C)
HU-211, (dexanabinol, (6AS,10AS)-9-(hydroxymethyl)-6,6-Dimethyl-3-(2-methyloctan-2-YL)-6A,7,10,10atetrahydrobenzo
[ C] chromen-1-OL);
(D)
JWH-018, 1-pentyl-3-(1-naphthoyl) indole;
(E)
JWH-019, 1-hexyl-3-(1-naphthoyl) indole;
(F)
JWH-073, 1-butyl-3-(1-naphthoyl) indole;
(G)
JWH-200, (1-(2-morpholin-4-ylethyl) indol-3-yl)- Naphthalen-1-ylmethanone;
(H)
JWH-250, 1-pentyl-3-(2-methoxyphenylacetyl) indole.
(55)
Synthetic cannabinoids including any material, compound, mixture or preparation
that is not listed as a controlled substance in Schedule I through V, is not a
federal Food and Drug Administration approved drug or used within legitimate
and approved medical research and which contains any quantity of the following
substances, their salts, isomers, whether optical positional or geometric,
analogues, homologues and salts of isomers, analogues and homologues, unless
specifically exempted, whenever the existence of these salts, isomers,
analogues, homologues and salts of isomers, analogues and homologues if
possible within the specific chemical designation:
(A)
Tetrahydrocannabinols meaning tetrahydrocannabinols which are naturally
contained in a plant of the genus cannabis as well as synthetic equivalents of
the substances contained in the plant or in the resinous extractives of
cannabis or synthetic substances, derivatives and their isomers with analogous
chemical structure and or pharmacological activity such as the following:
(i)
DELTA-1 CIS OR trans tetrahydrocannabinol and their Optical isomers.
(ii)
DELTA-6 CIS OR trans tetrahydrocannabinol and their Optical isomers.
(iii)
DELTA-3,4 CIS OR their trans tetrahydrocannabinol and their optical isomers.
(B)
Naphthoyl indoles or any compound containing a 3-(-1- Napthoyl) indole
structure with substitution at the nitrogen atom of the indole ring whether or
not further substituted in the indole ring to any extent and whether or not
substituted in the naphthyl ring to any extent. This shall include the
following:
(i)
JWH 015;
(ii)
JWH 018;
(iii)
JWH 019;
(iv)
JWH 073;
(v)
JWH 081;
(vi)
JWH 122;
(vii)
JWH 200;
(viii)
JWH 210;
(ix)
JWH 398;
(x)
AM 2201;
(xi)
WIN 55,212.
(56)
Synthetic Phenethylamines (including their optical, positional, and geometric
isomers, salts and salts of isomers, whenever the existence of such salts,
isomers, and salts of isomers):
(A)
2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25I-NBOMe/
2C-I-NBOMe);
(B)
2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine
(25C-NBOMe/2C-C-NBOMe);
(C)
2-(4-bromo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25B-NBOMe/
2C-B-NBOMe);
(57)
Synthetic Opioids (icluding their isomers, esters, ethers, salts and salts of
isomers, esters and ethers):
(A)
N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide (acetyl fentanyl);
(B)
furanyl fentanyl;
(C)
3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide (also known as
U-47700);
(D)
N-(1-phenethylpiperidin-4-yl)-N-phenylbutyramide, also known as
N-(1-phenethylpiperidin-4-yl)-N-phenylbutanamide, (butyryl fentanyl);
(E)
N-[1-[2-hydroxy-2-(thiophen-2-yl)ethylpiperidin-4-yl]-N-phenylpropionamide,
also known as
N-[1-[2-hydroxy-2-(2-thienyl)ethyl]-4-piperidinyl]-N-phenylpropanamide,
(beta-hydroxythiofentanyl).
(58)
Opioid Receptor Agonist (including its isomers, esters, ethers, salts, and
salts of isomers, esters and ethers):
(A)
AH-7921 (3,4-dichloro-N- (1dimethylamino)cyclohexylmethyl]benzamide).
(56) (59)
Naphylmethylindoles or any compound containing a 1hindol-3-yl-(1-naphthyl)
methane structure with a substitution at the nitrogen atom of the indole ring
whether or not further substituted in the indole ring to any extent and whether
or not substituted in the naphthyl ring to any extent. This shall include, but
not be limited to, JWH 175 and JWH 184.
(57) (60)
Naphthoylpyrroles or any compound containing a 3-(1- Naphthoyl) pyrrole
structure with substitution at the nitrogen atom of the pyrrole ring whether or
not further substituted in the pyrrole ring to any extent and whether or not
substituted in the naphthyl ring to any extent. This shall include, but not be
limited to, JWH 147 and JWH 307.
(58) (61)
Naphthylmethylindenes or any compound containing a Naphthylideneindene
structure with substitution at the 3- Position of the indene ring whether or
not further substituted in the indene ring to any extent and whether or not
substituted in the naphthyl ring to any extent. This shall include, but not be
limited to, JWH 176.
(59) (62)
Phenylacetylindoles or any compound containing a 3- Phenylacetylindole
structure with substitution at the nitrogen atom of the indole ring whether or
not further substituted in the indole ring to any extent and whether or not
substituted in the phenyl ring to any extent. This shall include the following:
(A)
RCS-8, SR-18 OR BTM-8;
(B)
JWH 250;
(C)
JWH 203;
(D)
JWH 251;
(E)
JWH 302.
(60) (63)
Cyclohexylphenols or any compound containing a 2-(3- hydroxycyclohexyl) phenol
structure with a substitution at the 5-position of the phenolic ring whether or
not substituted in the cyclohexyl ring to any extent. This shall include the
following:
(A)
CP 47,497 and its homologues and analogs;
(B)
Cannabicyclohexanol;
(C)
CP 55,940.
(61) (64) Benzoylindoles
or any compound containing a 3-(benzoyl) indole structure with substitution at
the nitrogren atom of the indole ring whether or not further substituted in the
indole ring to any extent and whether or not substituted in the phenyl ring to
any extent. This shall include the following:
(A)
AM 694;
(B)
Pravadoline WIN 48,098;
(C)
RCS 4;
(D)
AM 679.
(62) (65) [2,3-dihydro-5
methyl-3-(4-morpholinylmethyl)pyrrolo [1,2,3-DE]-1,
4-benzoxazin-6-YL]-1-napthalenymethanone. This shall include WIN 55,212-2.
(63) (66) Dibenzopyrans
or any compound containing a 11-hydroxydelta 8-tetrahydrocannabinol structure
with substitution on the 3-pentyl group. This shall include HU-210, HU-211, JWH
051 and JWH 133.
(64) (67)
Adamantoylindoles or any compound containing a 3-(-1- Adamantoyl) indole
structure with substitution at the nitrogen atom of the indole ring whether or
not further substituted in the adamantoyl ring system to any extent. This shall
include AM1248.
(65) (68)
Tetramethylcyclopropylindoles or any compound containing A
3-tetramethylcyclopropylindole structure with substitution at the nitrogen atom
of the indole ring whether or not further substituted in the indole ring to any
extent and whether or not substituted in the tetramethylcyclopropyl ring to any
extent. This shall include UR-144 and XLR-11.
(66) (69)
N-(1-Adamantyl)-1-pentyl-1h-indazole-3-carboxamide. This shall include AKB48.
(67) (70) Any other
synthetic chemical compound that is a Cannabinoid receptor type 1 agonist as
demonstrated by binding studies and functional assays that is not listed in
Schedules II, III, IV and V, not federal Food and Drug Administration approved
drug or used within legitimate, approved medical research. Since nomenclature
of these substances is not internationally standardized, any immediate
precursor or immediate derivative of these substances shall be covered.
(68) (71) Tryptamines:
(A)
5- methoxy- N- methyl-N-isopropyltryptamine (5-MeO-MiPT)
(B)
4-hydroxy-N, N-diisopropyltryptamine (4-HO-DiPT)
(C)
4-hydroxy-N-methyl-N-isopropyltryptamine (4-HO-MiPT)
(D)
4-hydroxy-N-methyl-N-ethyltryptamine (4-HO-MET)
(E)
4-acetoxy-N, N-diisopropyltryptamine (4-AcO-DiPT)
(F)
5-methoxy-α-methyltryptamine (5-MeO-AMT)
(G)
4-methoxy-N, N-Dimethyltryptamine (4-MeO-DMT)
(H)
4-hydroxy Diethyltryptamine (4-HO-DET)
(I)
5- methoxy- N, N- diallyltryptamine (5-MeO-DALT)
(J)
4-acetoxy-N, N-Dimethyltryptamine (4-AcO DMT)
(K)
4-hydroxy Diethyltryptamine (4-HO-DET)
(72)????? N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide
(AB-CHMINACA);
(73)
N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide
(AB-PINACA);
(74)
[1-(5-fluoropentyl)-1H-indazol-3-yl (naphthalen-1-yl)methanone (THJ-2201);
(75)
quinolin-8-yl 1-pentyl-1H-indole-3-carboxylate (PB-22; QUPIC);
(76)
quinolin-8-yl 1-(5-fluoropentyl)-1H-indole-3-carboxylate (5-fluoro-PB-22;
5F-PB-22);
(77)????? N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide
(AB-FUBINACA);
(78)????? N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide
(ADB-PINACA); and
(79)????? N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide
(common names, MAB-CHMINACA and ADB-CHMINACA);
?(e) Depressants. -- Unless specifically
excepted or unless listed in another schedule, any material, compound, mixture,
or preparation which contains any quantity of the following substances having a
depressant effect on the central nervous system, including its salts, isomers
and salts of isomers whenever the existence of such salts, isomers and salts of
isomers is possible within the specific chemical designation:
(1)
Mecloqualone;
(2)
Methaqualone.
(f)
Stimulants. -- Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture, or preparation which contains any
quantity of the following substances having a stimulant effect on the central
nervous system, including its salts, isomers and salts of isomers:
(1)
Aminorex; some other names: aminoxaphen; 2-amino-5- phenyl-2-oxazoline; or
4,5-dihydro-5-phenyl-2-oxazolamine;
(2)
Cathinone; some trade or other names: 2-amino-1-phenyl-1- propanone,
alpha-aminopropiophenone, 2-aminopropiophenone and norephedrone;
(3)
Fenethylline;
(4)
Methcathinone, its immediate precursors and immediate derivatives, its salts, optical
isomers and salts of optical isomers; some other names:
(2-(methylamino)-propiophenone; alpha-
(methylamino)propiophenone;
2-(methylamino)-1-phenylpropan-1- one; alpha---methylaminopropiophenone;
monomethylpropion; 3,4-methylenedioxypyrovalerone and/or
mephedrone;3,4-methylenedioxypyrovalerone (MPVD); ephedrone; N-methylcathinone;
methylcathinone; AL-464; AL-422; AL- 463 and UR1432;
(5)
(+-) cis-4-methylaminorex; ((+-) cis-4,5-dihydro-4-methyl-
5-phenyl-2-oxazolamine);
(6)
N-ethylamphetamine;
(7)
N,N-dimethylamphetemine; also known as N,N-alpha- trimethyl-benzeneethanamine;
N,N-alpha-trimethylphenethylamine.
(8)
Alpha-pyrrolidinopentiophenone, also known as alpha-PVP, optical isomers, salts
and salts of isomers.
(9)
Substituted amphetamines:
(A)
2-Fluoroamphetamine
(B)
3-Fluoroamphetamine
(C)
4-Fluoroamphetamine
(D)
2-chloroamphetamine
(E)
3-chloroamphetamine
(F)
4-chloroamphetamine
(G)
2-Fluoromethamphetamine
(H)
3-Fluoromethamphetamine
(I)
4-Fluoromethamphetamine
(J)
4-chloromethamphetamine
(10)
4-methyl-N-ethylcathinone (4-MEC);
(11)
4-methyl-alpha-pyrrolidinopropiophenone (4-MePPP);
(12)
1-(1,3-benzodioxol-5-yl)-2-(methylamino)butan-1-one (butylone);
(13)
2-(methylamino)-1-phenylpentan-1-one (pentedrone);
(14)
1-(1,3-benzodioxol-5-yl)-2-(methylamino)pentan-1-one (pentylone);
(15)
4-fluoro-N-methylcathinone (4-FMC);
(16)
3-fluoro-N-methylcathinone (3-FMC);
(17)
1-(naphthalen-2-yl)-2-(pyrrolidin-1-yl)pentan-1-one (naphyrone); and
(18)
Alpha-pyrrolidinobutiophenone (α-PBP).
(g)
Temporary listing of substances subject to emergency scheduling. Any material,
compound, mixture or preparation which contains any quantity of the following
substances:
(1)
N-[1-benzyl-4-piperidyl]-N-phenylpropanamide (benzylfentanyl), its optical
isomers, salts, and salts of isomers.
(2)
N-[1-(2-thienyl) methyl-4-piperidyl]-N-phenylpropanamide (thenylfentanyl), its
optical isomers, salts and salts of isomers.
(3)
N-benzylpiperazine, also known as BZP.
(h)
The following controlled substances are included in Schedule I:
(1)
Synthetic Cathinones or any compound, except bupropion or compounds listed
under a different schedule, or compounds used within legitimate and approved
medical research, structurally derived from 2- Aminopropan-1-one by
substitution at the 1-position with Monocyclic or fused polycyclic ring
systems, whether or not the compound is further modified in any of the
following ways:
(A)
By substitution in the ring system to any extent with Alkyl, alkylenedioxy,
alkoxy, haloalkyl, hydroxyl or halide Substituents whether or not further
substituted in the ring system by one or more other univalent substituents.
(B)
By substitution at the 3-Position with an acyclic alkyl substituent.
(C)
By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl or
methoxybenzyl groups.
(D)
By inclusion of the 2-amino nitrogen atom in a cyclic structure.
(2)
Any other synthetic chemical compound that is a Cannabinoid receptor type 1
agonist as demonstrated by binding studies and functional assays that is not
listed in Schedules II, III, IV and V, not federal Food and Drug Administration
approved drug or used within legitimate, approved medical research.
ARTICLE 4. OFFENSES AND
PENALTIES.
?60A-4-414. Unlawful manufacture, delivery,
transport into state, or possession of fentanyl.
(a) For
purposes of this section,
?(1) ?Controlled substance? shall have the same
meaning as provided in subsection (e), section one hundred one, article one of
this chapter.
(2) ?Fentanyl?
refers to the substance identified in subdivision (9), subsection (c), section
two hundred six, article two of this chapter, and any analog or derivative
thereof.
(b) Any person
who violates the provisions of subsection (a), section four hundred one of this
article or section four hundred nine of this article in which fentanyl is a
controlled substance involved in the offense, either alone or in combination
with another controlled substance, shall be guilty of a felony, and upon
conviction thereof, shall be punished in accordance with the following:
(1) If the net
weight of fentanyl involved in the offense is less than one gram, such person
shall be imprisoned in a correctional facility not less than two nor more than
ten years.
(2) If the net
weight of fentanyl involved in the offense is one gram or more but less than five
grams, such person shall be imprisoned in a correctional facility not less than
three nor more than fifteen years.
(3) If the net
weight of fentanyl involved in the offense is five grams or more, such person
shall be imprisoned in a correctional facility not less than four nor more than
twenty years.
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:
Com.
Sub. for H. B. ?2329 - ?A Bill to amend and reenact ?60A-1-101
of the Code of West Virginia, 1931, as amended; to amend and reenact ?60A-2-204
of said code; and to amend said code by adding thereto a new section,
designated ?60A-4-414, all relating to prohibiting the unlawful production,
manufacture or possession of fentanyl and fentanyl analogs and derivatives;
defining a fentanyl analog or derivative; classifying a fentanyl analog or
derivative as a Schedule I drug; classifying additional drugs to Schedules I of
uniform controlled substances act; creating a felony offense and imposing
criminal penalties for the unlawful manufacture, delivery, possession with
intent to manufacture or deliver, and transport into state of fentanyl;
defining terms; establishing increased penalties for manufacturing, delivering,
possessing with intent to manufacture or deliver, and transporting into state
with intent to deliver or manufacture in which fentanyl is a controlled
substance involved in the offense; and providing for penalties based upon weight.?
????????????????? Respectfully
submitted,
??????????? Kelli Sobonya, Chair,???????????????????????????????????? ??? Ryan J. Weld, Chair,
??????????? Ray Hollen,???????????????????????????????????????????????????? ??? Mark R. Maynard,
??????????? Rodney Miller,???????????????????????????????????????????????? ??? Glenn Jeffries,
??????????? Conferees
on the part???????????????????????????????????? ??? Conferees on the part
??????????? ?? of the House of Delegates.????????????????????????? ?????? ?of the Senate.
??????????? On
motion of Delegate Hollen, the report of the Committee of Conference was
adopted.
??????????? The bill, as amended by said report,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 590),
and there were--yeas 98, nays 2, absent and not voting none, with the nays
being as follows:
??????????? Nays: Folk and McGeehan.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2329) passed.
??????????? Ordered, That the Clerk of the House communicate to the Senate the action of the
House of Delegates and request concurrence therein.
Delegate Blair, from the Committee of Conference
on matters of disagreement between the two houses, as to
Com.
Sub. for H. B. 2589, Permitting students who are
homeschooled or attend private schools to enroll and take classes at the county?s
vocational school.
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
That both houses agree with the Senate?s
amendment, except that it be further amended on page one, section fifteen-g,
line three, after the word ?counties?, by changing the period to a colon and by
inserting the following:
Provided, that such students will be treated
equally for admission purposes with applicants enrolled in public school.
Saira Blair, Chair,?????????????????????????????????????? ??????????????Ed Gaunch, Chair,
Jill Upson,????????????????????????????????? ???????????????????????????????Kenny Mann,
(Did
not sign.)
Ralph Rodighiero,????????????????????????????????? ????????????????????Mike Romano,
Conferees
on the part of the????????? ????????????????????????????Conferees on the
part of the Senate.
???? House of Delegates.
??????????? Delegate
Blair moved that the report of the Committee of Conference be adopted.
??????????? On this motion, the yeas and nays
were demanded, which demand was sustained.
??????????? The yeas and nays having been
ordered, they were taken (Roll No. 591),
and there were--yeas 65, nays 35, absent and not voting none, with the nays
being as follows:
??????????? Nays: Ambler, Baldwin, Bates, Boggs,
Canestraro, Caputo, Cooper, Diserio, Eldridge, E. Evans, Ferro, Fleischauer,
Fluharty, Hamilton, Harshbarger, Hartman, Hornbuckle, Iaquinta, Isner,
Longstreth, Love, Lovejoy, Lynch, Marcum, Maynard, R. Miller, Moye, Pethtel,
Pyles, Rodighiero, Rohrbach, Sponaugle, Thompson, Wagner and Westfall.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the report of the Committee
of Conference was adopted.
??????????? The question being on the passage of
the bill, the yeas and nays were taken (Roll
No. 592), and there were--yeas 78, nays 22, absent and not voting none,
with the nays being as follows:
??????????? Nays: Baldwin, Canestraro, Cooper,
Diserio, E. Evans, Ferro, Fleischauer, Iaquinta, Isner, Longstreth, Love,
Lovejoy, Lynch, Marcum, R. Miller, Moye, Pethtel, Pyles, Rohrbach, Thompson,
Wagner and Westfall.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for H. B. 2589) passed.
??????????? Ordered, That the Clerk of the House communicate to the Senate the action of the
House of Delegates and request concurrence therein.
At 10:37 p.m.,
on motion of Delegate Cowles, the House of Delegates recessed until 11:00 p.m.
* * * * * * *
Evening Session
* * * * * * *
-Continued-
??????????? The House was called to order by the
Honorable Tim Armstead, Speaker.
Messages from the Senate
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, to take effect from passage, a bill
of the House of Delegates, as follows:
??????????? Com.
Sub. for H. B. 2781, Requiring a person desiring to vote to present
documentation identifying the voter to one of the poll clerks.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
??????????? On page one, by striking out
everything after the enacting clause and inserting in lieu thereof the
following:
?That
?3-2-11 of the Code of West Virginia, 1931, as amended, be amended and
reenacted to read as follows:
ARTICLE 2. REGISTRATION OF VOTERS.
?3-2-11.
Registration in conjunction with driver licensing.
(a)
The Division of Motor Vehicles or other division or department that may be
established by law to perform motor vehicle driver licensing services shall
obtain, as an integral and simultaneous part of every process of
application for the issuance, renewal or change of address of a motor vehicle
driver?s license or official identification card pursuant to the provisions of
article two, chapter seventeen-b of this code, when the division?s regional
offices are open for regular business, the following information from each
qualified registrant:
(1)
Full name, including first, middle, last and any premarital names;
(2)
Date of birth;
(3)
Residence address and mailing address, if different;
(4)
The applicant?s electronic signature;
(5)
Telephone number, if available;
(6)
Email address, if available;
(7)
Political party membership, if any;
(8)
Driver?s license number and last four digits of social security number;
(9)
A notation that the applicant has attested that he or she meets all voter
eligibility requirements, including United States citizenship;
(10)
Whether the applicant affirmatively declined to become registered to vote
during the transaction with the Division of Motor Vehicles;
(11)
Date of application; and
(12)
Any other information specified in rules adopted to implement this section.
(b)
Unless the applicant affirmatively declines to become registered to vote or
update their voter registration during the transaction with the Division of
Motor Vehicles, the Division of Motor Vehicles shall release all of the
information obtained pursuant to subsection (a) of this section, to the
Secretary of State, who shall forward the information to the county clerk for
the relevant county to process the newly registered voter or updated
information for the already-registered voter pursuant to law. Notwithstanding
any other provision of this code to the contrary, if the applicant
affirmatively declines to become registered to vote, the Division of Motor
Vehicles is required to release the first name, middle name, last name,
premarital name, if applicable, complete residence address, complete date of
birth of an applicant and the applicant?s electronic signature, entered in the
division?s records for driver license or nonoperator identification purposes to
the Secretary of State in order to facilitate any future attempt of the
applicant to register to vote online, along with the notation that the
applicant affirmatively declined to become registered at that time. The
Division of Motor Vehicles shall notify that applicant that by submitting his
or her signature, the applicant grants written consent for the submission of
the information obtained and required to be submitted to the Secretary of State
pursuant to this section.
(c)
Information regarding a person?s failure to sign the voter registration
application is confidential and may not be used for any purpose other than to
determine voter registration.
(d)
A qualified voter who submits the required information or update to his or her
voter registration, pursuant to the provisions of subsection (a) of this
section, in person at a driver licensing facility at the time of applying for,
obtaining, renewing or transferring his or her driver?s license or official
identification card and who presents identification and proof of age at that
time is not required to make his or her first vote in person or to again
present identification in order to make that registration valid.
(e)
A qualified voter who submits by mail or by delivery by a third party an
application for registration on the form used in conjunction with driver
licensing is required to make his or her first vote in person and present
identification as required for other mail registration in accordance with the
provisions of subsection (g), section ten of this article. If the applicant has
been previously registered in the jurisdiction and the application is for a
change of address, change of name, change of political party affiliation or
other correction, the presentation of identification and first vote in person
is not required.
(f)
An application for voter registration submitted pursuant to the provisions of
this section updates a previous voter registration by the applicant and
authorizes the cancellation of registration in any other county or state in
which the applicant was previously registered.
(g)
A change of address from one residence to another within the same county which
is submitted for driver licensing or nonoperator?s identification purposes in
accordance with applicable law serves as a notice of change of address for
voter registration purposes if requested by the applicant after notice and
written consent of the applicant.
(h)
Completed applications for voter registration or change of address for voting
purposes received by an office providing driver licensing services shall be
forwarded to the Secretary of State within five days of receipt unless other
means are available for a more expedited transmission. The Secretary of State
shall remove and file any forms which have not been signed by the applicant and
shall forward completed, signed applications to the clerk of the appropriate
county commission within five days of receipt.
(i)
Voter registration application forms containing voter information which are
returned to a driver licensing office unsigned shall be collected by the
Division of Motor Vehicles, submitted to the Secretary of State and maintained
by the Secretary of State?s office according to the retention policy adopted by
the Secretary of State.
(j)
The Secretary of State shall establish procedures to protect the
confidentiality of the information obtained from the Division of Motor
Vehicles, including any information otherwise required to be confidential by
other provisions of this code.
(k)
A person registered to vote pursuant to this section may cancel his or her
voter registration at any time by any method available to any other registered
voter.
(l)
This section shall not be construed as requiring the Division of Motor Vehicles
to determine eligibility for voter registration and voting.
(m)
The changes made to this section during the 2016 Regular Legislative Session
shall become effective on July 1, 2017 2019, and any costs
associated therewith shall be paid by the Division of Motor Vehicles. If the
Division of Motor Vehicles is unable to meet the requirements of this section
by February 1, 2017 2019, it shall make a presentation to the
Joint Committee on Government and Finance explaining any resources necessary to
meet the requirements or any changes to the code that it recommends immediately
prior to the 2017 2019 Regular Legislative Session: Provided, That the Division of Motor
Vehicles shall report to the Joint Committee on Government and Finance by
January 1, 2018 with a full and complete list of all infrastructure they
require to achieve the purposes of this section.
(n)
The Secretary of State shall propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-nine-a of this
code in order to implement the requirements of this section.?
And,
By
amending the title of the bill to read as follows:
Com. Sub. for H. B. 2781 ? ?A Bill to amend and reenact ?3-2-11
of the Code of West Virginia, 1931, as amended, relating to voting procedures;
removing requirement that Division of Motor Vehicles forward certain
information of persons who decline to become registered to vote to Secretary of
State; amending the effective date for voter registration procedures passed in
2016 and 2017 legislative sessions to July 1, 2019; requiring Division of Motor
Vehicles to make presentation to Joint Committee on Government and Finance if
unable to meet requirements of section by February 1, 2019; and requiring
Division of Motor Vehicles shall report to the Joint Committee on Government
and Finance by January 1, 2018, with full and complete list of all
infrastructure they require to achieve certain purposes.?
??????????? The
bill, as amended by the Senate, was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 593),
and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent
and not voting being as follows:
??????????? Nays: Cooper and Eldridge.
??????????? Absent and Not Voting: Phillips,
Sponaugle, Westfall and White.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2781) passed.
??????????? Delegate
Cowles moved that the bill take effect from its passage.
??????????? On this question, the yeas and nays
were taken (Roll No. 594), and there
were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and
not voting being as follows:
??????????? Nays: Cooper.
??????????? Absent and Not Voting: Phillips and
Sponaugle.
??????????? So, two thirds of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2781) takes effect from its passage.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the House of Delegates amendment, with a title amendment, and
the passage, as amended, of
??????????? Com.
Sub. for H. B. 2648, Increasing penalties for manufacturing or
transportation of a controlled substance in the presence of a minor.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the House of Delegates amendment, with amendment, and the
passage, as amended, of
??????????? Com.
Sub. for S. B. 220, Relating to offenses and penalties under Uniform
Controlled Substances Act.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
??????????? On page one, by striking out
everything and inserting in lieu thereof the following:
?That the Code of West Virginia, 1931, as
amended, be amended by adding thereto a new section, designated ?60A-4-414, to read
as follows:
ARTICLE 4. OFFENSES AND
PENALTIES.
?60A-4-414.
Drug delivery resulting in death; failure to render aid.
(a) Any person who knowingly and willfully delivers a controlled
substance or counterfeit controlled substance in violation of the provisions of
section four hundred one, article four of this chapter for an illicit purpose
and the use, ingestion or consumption of the controlled substance or counterfeit
controlled substance alone or in combination with one or more other controlled
substances, proximately causes the death of a person using, ingesting or
consuming the controlled substance, is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility for a determinate
sentence of not less than three nor more than fifteen years.
(b) Any person who, while engaged in the illegal use of a
controlled substance with another, who knowingly fails to seek medical assistance
for such other person when the other person suffers an overdose of the
controlled substance or suffers a significant adverse physical reaction to the
controlled substance and the overdose or adverse physical reaction proximately
causes the death of the other person, is guilty of a felony and, upon
conviction thereof, shall be imprisoned for not less than one year nor more
than five years.?
And,
By amending the title of the bill to read as follows:
Com. Sub. for S. B. 220 ? ?A Bill to
amend the Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated ?60A-4-414, relating generally to offenses and penalties
under the Uniform Controlled Substances Act; creating the felony offense of
delivering controlled substances or counterfeit controlled substances for an
illicit purpose resulting in the death of another person and providing criminal
penalties therefor; creating the criminal offense of failing to seek necessary
medical attention for another while jointly engaged in illegal use of
controlled substances where death ensues; and providing criminal penalties
therefor.?
??????????? The bill, as amended by the House,
and further amended by the Senate, was then put upon its passage.
??????????? The question being on the passage of
the bill, the yeas and nays were taken (Roll
No. 595), and there were--yeas 73, nays 27, absent and not voting none,
with the nays being as follows:
??????????? Nays: Ambler, Arvon, Cooper, Cowles,
Fast, Folk, N. Foster, Harshbarger, Hill, Hornbuckle, Howell, Isner, Kelly,
Lane, Lynch, McGeehan, Moore, Moye, Paynter, Pushkin, Pyles, Rowe, Sponaugle,
Statler, Wagner, Walters and Wilson.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 220) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? Com.
Sub. for H. B. 2620, West Virginia Drug Overdose Monitoring Act.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
On
page one, 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 ?16-5T-1,
?16-5T-2, ?16-5T-3, ?16-5T-4 and ?16-5T-5, all to read as follows:
Article 5T. Office of Drug Control Policy.
?16-5T-1. Short title.
??????????? This article shall be referred to as the West Virginia Drug Control Policy Act.
16-5T-2. Office of Drug Control Policy.
(a)
(a) The Office of Drug Control Policy is created within the
Department of Health and Human Resources under the direction of the Secretary
and supervision of the State Health Officer.
(b) The Office of Drug Control Policy shall create a state drug
control policy in coordination with the bureaus of the Department and other
state agencies. This policy shall include all programs which are related to the
prevention, treatment and reduction of substance abuse use disorder.
(c) The Office of Drug Control Policy shall:
(1) Develop a strategic plan to reduce the prevalence of drug and
alcohol abuse and smoking by at least ten percent by July 1, 2018;
(2) Monitor, coordinate and oversee the collection of data and
issues related to drug, alcohol and tobacco access, substance use disorder
policies and smoking cessation and prevention and their impact on state and
local programs;
(3) Make policy recommendations to executive branch agencies that
work with alcohol and substance use disorder issues, and smoking cessation and
prevention to ensure the greatest efficiency and consistency in practices will
be applied to all efforts undertaken by the administration;
(4) Identify existing resources and prevention activities in each
community that advocate or implement emerging best practice and evidence-based
programs for the full substance use disorder continuum of drug and alcohol
abuse education and prevention, including smoking cessation or prevention,
early intervention, treatment and recovery;
(5) Encourage coordination among public and private, state and
local, agencies, organizations and service providers and monitor related
programs;
(6) Act as the referral source of information, using existing
information clearinghouse resources within the Department for Health and Human
Resources, relating to emerging best practice and evidence-based substance use
disorder prevention, cessation, treatment and recovery programs, and youth
tobacco access, smoking cessation and prevention. The Office of Drug Control
Policy will identify gaps in information referral sources;
(7) Apply for grant opportunities for existing programs;
(8) Observe programs in other states;
(9) Make recommendations and provide training, technical
assistance and consultation to local service providers;
(10) Review existing research on programs related to substance use
disorder prevention and treatment and smoking cessation and prevention and
provide for an examination of the prescribing and treatment history, including
court-ordered treatment or treatment within the criminal justice system, of
persons in the state who suffered fatal or nonfatal opiate overdoses;
(11) Establish a mechanism to coordinate the distribution of funds
to support any local prevention, treatment and education program based on the
strategic plan that could encourage smoking cessation and prevention through
efficient, effective and research-based strategies;
(12) Establish a mechanism to coordinate the distribution of funds
to support a local program based on the strategic plan that could encourage
substance use prevention, early intervention, treatment and recovery through
efficient, effective and research-based strategies;
(13) Oversee a school-based initiative that links schools with
community-based agencies and health departments to implement school-based
antidrug and anti-tobacco programs;
(14) Coordinate media campaigns designed to demonstrate the
negative impact of substance use disorder, smoking and the increased risk of
tobacco addiction and the development of other diseases;
(15) Review Drug Enforcement Agency and the West Virginia
scheduling of controlled substances and recommend changes that should be made
based on data analysis;
(16) Develop recommendations to improve communication between
health care providers and their patients about the risks and benefits of opioid
therapy for acute pain, improve the safety and effectiveness of pain treatment
and reduce the risks associated with long-term opioid therapy, including opioid
use disorder and overdose;
(17) Develop and implement a program, in accordance with the
provisions of section three of this article, to collect data on fatal and
nonfatal drug overdoses, caused by abuse and misuse of prescription and illicit
drugs from law enforcement agencies, emergency medical services, health care
facilities and the Office of the Chief Medical Examiner;
(18) Develop and implement a program that requires the collection
of data on the dispensing and use of an opioid antagonist from law enforcement
agencies, emergency medical services, health care facilities, the Office of the
Chief Medical Examiner and other entities as required by the office;
(19) Develop a program that provides assessment of persons who
have been administered an opioid antagonist; and
(20) Report semi-annually to the Joint Committee on Health on the
status of the Office of Drug Control Policy.
(d) Notwithstanding any other provision of this code to the
contrary, and to facilitate the collection of data and issues, the Office of
Drug Control Policy may exchange necessary data and information with the
bureaus within the Department, the Department of Military Affairs and Public
Safety, the Department of Administration, the Administrator of Courts, the
Poison Control Center, and the Board of Pharmacy. The data and information may
include, but is not be limited to: data from the Controlled Substance
Monitoring Program; the all-payer claims database; the criminal offender record
information database; and the court activity record information;
(e) Prior to
July 1, 2018, the office shall develop a plan to expand the number of treatment
beds in locations throughout the state which the office determines to be the
highest priority for serving the needs of the citizens of the state.
?16-5T-3. Reporting system requirements; implementation;
central repository requirement.
(a)
The Office of Drug
Control Policy
shall implement a program in which a central repository is established and
maintained that shall contain information required by this article. In
implementing this program, the office shall consult with all affected entities,
including law-enforcement agencies, health care providers, emergency response
providers, pharmacies and medical examiners.
(b) The
program authorized by subsection (a) of this section shall be designed to
minimize inconvenience to all entities maintaining possession of the relevant
information while effectuating the collection and storage of the required
information. The Office
of Drug Control Policy shall allow reporting of the required information by
electronic data transfer where feasible, and where not feasible, on reporting
forms promulgated by the Office
of Drug Control Policy. The information required to be submitted by the provisions
of this article shall be required to be filed no more frequently than on a
quarterly basis.
?16-5T-4.
Entities required to report; required information.
(a)
To fulfill the purposes of this article, the following information shall be reported
to the Office of Drug
Control Policy:
(1)
An emergency medical or law-enforcement response to a suspected or reported
overdose, or a response in which an overdose is identified by the responders;
(2)
Medical treatment for an overdose;
(3)
The dispensation or provision of an opioid antagonist; and
(4)
Death attributed to overdose or ?drug poisoning?.
(b)
The following entities shall be required to report information contained in
subsection (a) of this section:
(1)
Pharmacies operating in the state;
(2)
Health care providers;
(3)
Medical examiners;
(4)
Law-enforcement agencies, including prosecuting attorneys, state, county and
local police departments; and
(5) Emergency response providers.
?16-5T-5. Promulgation of
rules.
The Secretary
of the Department of Health and Human Resources may propose rules for
promulgation in accordance with article three, chapter twenty-nine-a of this
code to implement the provisions of this section. The legislature finds that
for the purposes of section fifteen, article three, chapter twenty-nine-a of
this Code, an emergency exists requiring the promulgation of emergency rules to
preserve the public peace, health, safety or welfare and to prevent substantial
harm to the public interest.?
And,
By amending the
title of the bill to read as follows:
Com. Sub. for H. B. 2620 -? ?A
Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a
new article, designated ?16-5T-1, ?16-5T-2, ?16-5T-3, ?16-5T-4 and ?16-5T-5,
all relating to the West Virginia Drug Control Policy Act; creating the Office
of Drug Control Policy within the Department of Health and Human Resources;
requiring the office to develop a state drug control policy and a strategic
plan; requiring the office to coordinate with other entities; setting forth
duties of the office; requiring the coordination of funding; requiring data
sharing; requiring the office to develop a plan to add treatment beds; required
reporting; requiring the office to create a central repository of drug overdose
information in West Virginia; establishing the program and purpose;
establishing the reporting system requirements; establishing responsibility of
entities to report information; setting forth information required to be
reported and the agencies which are affected; providing for data collection and
reporting; and providing for rule-making authority and emergency rule-making
authority.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On
the passage of the bill, the yeas and nays were taken (Roll No. 596), and there were--yeas 96, nays 4, absent and not
voting none, with the nays being as follows:
??????????? Nays: Cooper, Fast, Folk and
McGeehan.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2620) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, with amendment, a bill of the House of Delegates,
as follows:
??????????? H.
B. 3022, Relating to the reporting of fraud, misappropriation of moneys,
and other violations of law to the commission on special investigations.
??????????? On motion of Delegate Cowles, the House
concurred in the following amendment of the bill by the Senate:
??????????? On page one, by striking out
everything after the enacting clause and inserting in lieu thereof the
following:
?That the Code of West Virginia, 1931,
as amended, be amended by adding thereto a new section, designated ?7-1-16,
that said code be amended by adding thereto a new section, designated ?8-9-4,
and that said code be amended by adding thereto a new section, designated
30-1-5a, all to read as follows:
Chapter 7.
County Commissions and Officers.
Article 1.
County Commissions Generally.
?7-1-16. Reporting of fraud and
misappropriation of funds.
(a)
Whenever a county commission, or any of a county?s boards, committees, or any
other entities of any kind or nature authorized in this chapter, obtains information
that an employee, officer or member of the county commission, or any of a
county?s boards, committees, or any other entities of any kind or nature
authorized in this chapter may have misappropriated funds, engaged in fraud, or
otherwise violated a law relating to the public trust, the county commission,
or the county?s board, committee, or other entity authorized in this chapter
shall timely report such information or allegation in writing to the County
Prosecutor?s office.
(b)
The reporting of such information under subsection (a) of this section shall
not prevent, relieve or replace a report to a law-enforcement agency, if
appropriate or warranted.
Chapter 8.
Municipal Corporations.
ARTICLE 9. PROCEEDINGS OF GOVERNING BODIES.
?8-9-4. Reporting of fraud and
misappropriation of funds.
(a)
Whenever a governing body of a municipality, or any of a municipality?s boards,
committees, or any other entities of any kind or nature authorized in this
chapter, obtains information that an employee, officer or member of
municipality, or any of a municipality?s boards, committees, or any other
entities of any kind or nature authorized in this chapter may have
misappropriated funds, engaged in fraud, or otherwise violated a law relating
to the public trust, municipality, or any of a municipality?s board, committee,
or any other entity authorized in this chapter shall timely report such
information or allegation in writing to the County Prosecutor?s office.
(b)
The reporting of such information under subsection (a) of this section shall
not prevent, relieve or replace a report to a law-enforcement agency, if
appropriate or warranted.
Chapter
30. Professions and Occupations.
ARTICLE 1.
GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR
REGISTRATION REFERRED TO IN CHAPTER.
?30-1-5a. Reporting of fraud and
misappropriation of funds.
(a)
Whenever a board referred to in this chapter obtains information that an
employee, officer or member of the board may have misappropriated funds,
engaged in fraud, or otherwise violated a law relating to the public trust, the
board shall timely report such information or allegation in writing to the
Commission on Special Investigations, established in article five, chapter four
of this code.
(b)
The reporting of such information under subsection (a) of this section shall
not prevent, relieve or replace a report to a law-enforcement agency, if
appropriate or warranted.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
H. B. 3022 - ?A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section, designated
?7-12-15a; to amend said code by adding thereto a new section, designated
?8-9-4; and to amend said code by adding thereto a new section, designated
?30-1-5a, all relating to the reporting of fraud, misappropriation of moneys,
and other violations of law to the commission on special investigations;
requiring reporting when a county commission, or any of a county?s boards,
committees, or certain other county entities obtain certain information
regarding misappropriation, fraud or violations of law; requiring reporting
when a municipality, or any of a municipality?s boards, committees, or certain
other municipal entities obtain certain information regarding misappropriation,
fraud or violations of law; requiring reporting when certain professional and
occupational boards of the state obtain certain information regarding
misappropriation, fraud or violations of law; and clarifying that the reporting
requirements do not prevent, relieve or replace a report to law-enforcement
where appropriate or warranted.?
??????????? The bill, as amended by the Senate,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 597),
and there were--yeas 98, nays 2, absent and not voting none, with the nays
being as follows:
??????????? Nays: Cooper and Marcum.
??????????? So, a majority of the members
elected to the House of Delegates having voted in the affirmative, the Speaker
declared the bill (H. B. 3022) passed.
??????????? On motion of Delegate Cowles, the
title of the bill was amended to read as follows:
H. B. 3022 - ?A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section, designated
?7-1-16; to amend said code by adding thereto a new section, designated ?8-9-4;
and to amend said code by adding thereto a new section, designated ?30-1-5a,
all relating to the reporting of fraud, misappropriation of moneys, and other
violations of law relating to the public trust to the commission on special investigations;
requiring reporting when a county commission, or any of a county?s boards,
committees, or certain other county entities obtain certain information
regarding misappropriation, fraud or violations of law relating to the public
trust; requiring reporting when a municipality, or any of a municipality?s
boards, committees, or certain other municipal entities obtain certain
information regarding misappropriation, fraud or violations of law relating to
the public trust; requiring reporting when certain professional and
occupational boards of the state obtain certain information regarding
misappropriation, fraud or violations of law relating to the public trust; and
clarifying that the reporting requirements do not prevent, relieve or replace a
report to law-enforcement where appropriate or warranted.?
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Conference Committee
Reports
Delegate Hanshaw, from the Committee of Conference
on matters of disagreement between the two houses, as to
Com.
Sub. for S. B. 204, Requiring persons appointed to fill
vacancy by Governor have same qualifications for vacated office and receive
same compensation and expenses,
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
That both houses recede from their
respective positions as to the amendment of the House, striking out everything
after the enacting clause, and agree to the same as follows:
That ?5-1-22 of the Code of West
Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 1. THE GOVERNOR.
?5-1-22. Vacancies in offices filled by appointment of
Governor; Senate action; bond requirements; filling vacancies in other appointive
offices.
(a) In case of a vacancy, during the recess of the Senate, in
any office, which vacancy the Governor is authorized to fill by and with the
advice and consent of the Senate, the Governor shall, by appointment within
ninety days, fill such vacancy until the next meeting of the Senate, when
the Governor shall submit to the Senate a nomination to fill such vacancy and,
upon confirmation of such nomination by the Senate, by a vote of a majority of
all the members elected to the Senate, taken by yeas and nays, the person so
nominated and confirmed shall hold said office during the remainder of the term
for which his or her predecessor in office was appointed, and until his or
her successor shall be appointed and qualified. No person whose nomination
for office has been rejected by the Senate shall again be nominated for the
same office during the session in which his or her nomination was so
rejected, unless at the request of the Senate, nor shall he the
person be appointed to the same office during the recess of the Senate. No
appointee who resigns from any such office prior to confirmation, or whose name
has not been submitted for confirmation while the Senate is in session, shall
be eligible, during the recess of the Senate, to hold any office the nomination
for which must be confirmed by the Senate.
(b) Any person appointed to temporarily
fill a vacancy shall possess the qualifications required by law for that vacant
position, and may only remain in the vacated position for a maximum of ninety
days.
(c) If an employee of a state agency is
temporarily appointed to fill a vacancy, the employee may fill such vacancy
without resigning from the position he or she ordinarily holds: Provided, That the employee?s
compensation shall be the greater of:
(1) The
employee?s regular salary in his or her usual position; or
(2) The
salary for the office the employee temporarily fills.
(d) If a vacancy is temporarily filled
by a person not otherwise employed by any agency of the State of West Virginia,
then that person shall be compensated at a rate no greater than that of the
salary for the office that person temporarily fills.
(e) The bond, if any, required by law to be given by any
officer so temporarily appointed by the Governor, shall be in such penalty as is
required by law of the incumbent of such office.
(f) Any vacancy in any other office filled by appointment, or
in any office hereafter created to be filled by appointment, shall be filled by
the same person, court or body authorized to make appointment to such office
for the full term thereof.
And,
That both houses recede from their
respective positions as to the title of the bill and agree to the same as
follows:
Com.
Sub. for S. B. 204 ? ?A
Bill to amend and reenact ?5-1-22 of the Code of West Virginia, 1931, as
amended, relating to filling vacancies in offices by appointment of the
Governor; requiring certain appointments be made within ninety days;
authorizing temporary appointments; and providing requirements for persons
appointed temporarily to fill vacancies.?
????? ??????????? Respectfully submitted,
??????????? Greg Boso, Chair,?????? ??????????????????????? ??????????? ???? Roger Hanshaw,
Chair,
??????????? Ed Gaunch,???????????????????????????????????????????????????? ???? Mark Zatezalo,
??????????? Douglas Facemire,???????????????????????????????????????? ???? Phil Isner,
Conferees
on the part of the Senate. ??? ??????? Conferees
on the part of
??? ??????????????????????????????????????????????????????????????????????????????? ??????the
House of Delegates.
??????????? On
motion of Delegate Hanshaw, the report of the Committee of Conference was
adopted.
??????????? The bill, as amended by said report,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 598),
and there were--yeas 97, nays 3, absent and not voting none, with the nays
being as follows:
??????????? Nays: Cooper, Kelly and Marcum.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 204) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Delegate Hanshaw, from the Committee of Conference
on matters of disagreement between the two houses, as to
Com.
Sub. for S. B. 224, Repealing requirement for employer?s
bond for wages and benefits,
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
That both houses recede from their
respective positions as to the amendment of the Senate, striking everything
after the enacting clause, and agree to the same as follows:
That
?21-5-14 and ?21-5-15 of the Code of West Virginia, 1931, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 5. WAGE PAYMENT AND COLLECTION.
?21-5-14. Employee?s bond for wages and benefits.
(a) Bond required. -- With the exception of those who have been
doing business in this state actively and actually engaged in construction
work, or the severance, production or transportation of minerals for at least five
consecutive years one year next preceding the posting of the bond
required by this section, every employer, person, firm or corporation engaged
in or about to engage in construction work, or the severance, production or
transportation (excluding railroads and water transporters) of minerals, shall,
prior to engaging in any construction work, or the severance, production or
transportation of minerals, furnish a bond on a form prescribed by the
commissioner, payable to the State of West Virginia, with the condition that
the person, firm or corporation pay the wages and fringe benefits of his or
her or its employees when due. The amount of the bond shall be equal to the
total of the employer?s gross payroll for four weeks at full capacity or
production, plus fifteen percent of the said total of employer?s gross payroll
for four weeks at full capacity or production. The amount of the bond shall
increase or decrease as the employer?s payroll increases or decreases: Provided,
That the amount of the bond shall not be decreased, except with the
commissioner?s approval and determination that there are not outstanding claims
against the bond: Provided, however,
That if the employer, person, firm or corporation meets one of the following,
then such employer, person, firm or corporation shall be exempt from the
requirements of this subsection:
(1) Has been in business in another state for at least five years;
(2)? Has at least $100,000
in assets; or
(3) Is a subsidiary of a parent company that has been in business
for at least five years.
(b) Waiver. -- The commissioner shall waive the posting of any
bond required by subsection (a) of this section upon his or her
determination that an employer is of sufficient financial responsibility to pay
wages and fringe benefits. The commissioner shall promulgate rules and
regulations according to the provisions of chapter twenty-nine-a of this code
which prescribe standards for the granting of such waivers.
(c) Form of bond; filing in office of circuit clerk. -- The bond
may include, with the approval of the commissioner, surety bonding, collateral
bonding (including cash and securities), letters of credit, establishment of an
escrow account or a combination of these methods. The commissioner shall accept
an irrevocable letter of credit in lieu of any other bonding requirement. If
collateral bonding is used, the employer may deposit cash, or collateral
securities or certificates as follows: Bonds of the United States or its
possessions, or of the federal land bank, or of the homeowner?s loan
corporation; full faith and credit general obligation bonds of the State of
West Virginia or other states, and of any county, district or municipality of
the State of West Virginia or other states; or certificates of deposit in a
bank in this state, which certificates shall be in favor of the state. The cash
deposit or market value of such securities or certificates shall be equal to or
greater than the sum of the bond. The commissioner shall, upon receipt of any
such deposit of cash, securities or certificates, promptly place the same with
the State Treasurer whose duty it shall be to receive and hold the same in the
name of the state in trust for the purpose for which such deposit is made. The
employer making the deposit shall be entitled from time to time to receive from
the State Treasurer, upon the written approval of the commissioner, the whole
or any portion of any cash, securities or certificates so deposited, upon
depositing with him or her in lieu thereof, cash or other securities or
certificates of the classes herein specified having value equal to or greater
than the sum of the bond. The commissioner shall cause a copy of the bond to be
filed in the office of the clerk of the county commission of the county wherein
the person, firm or corporation is doing business to be available for public
inspection.
(d) Employee cause of action. -- Notwithstanding any other
provision in this article, any employee, whose wages and fringe benefits are
secured by the bond, as specified in subsection (c) of this section, has a
direct cause of action against the bond for wages and fringe benefits that are
due and unpaid.
(e) Action of commissioner. -- Any employee having wages and
fringe benefits unpaid may inform the commissioner of the claim for unpaid
wages and fringe benefits and request certification thereof. If the
commissioner, upon notice to the employer and investigation, finds that such
wages and fringe benefits or a portion thereof are unpaid, he or she
shall make demand of such employer for the payment of such wages and fringe
benefits. If payment for such wages and fringe benefits is not forthcoming
within the time specified by the commissioner, not to exceed thirty days, the
commissioner shall certify such claim or portion thereof, and forward the
certification to the bonding company or the State Treasurer, who shall provide
payment to the affected employee within fourteen days of receipt of such
certification. The bonding company, or any person, firm or corporation posting
a bond, thereafter shall have the right to proceed against a defaulting
employer for that part of the claim the employee paid. The procedure specified
herein shall not be construed to preclude other actions by the commissioner or
employee to seek enforcement of the provisions of this article by any civil
proceedings for the payment of wages and fringe benefits or by criminal
proceedings as may be determined appropriate.
(f) Posting and reporting by employer. -- With the exception of
those exempt under subsection (a) of this section, any employer who is engaged
in construction work or the severance, production or transportation (excluding
railroad and water transporters) of minerals shall post the following in a
place accessible to his or her or its employees:
(1) A copy of the bond or other evidence of surety specifying the
number of employees covered as provided under subsection (a) of this section,
or notification that the posting of a bond has been waived by the commissioner;
and
(2) A copy of the notice in the form prescribed by the
commissioner regarding the duties of employers under this section. During the
first two years year that any person, firm or corporation is
doing business in this state in construction work, or in the severance, production
or transportation of minerals, such person, firm or corporation shall on or
before February 1, May, August and November of each calendar year file with the
department a verified statement of the number of employees, or a copy of the
quarterly report filed with the Bureau of Employment Programs showing the
accurate number of employees, unless the commissioner waives the filing of the
report upon his or her determination that the person, firm or
corporation is of sufficient stability that the reporting is unnecessary.
(g) Termination of bond. -- The bond may be terminated, with the
approval of the commissioner, after an employer submits a statement, under oath
or affirmation lawfully administered, to the commissioner that the following
has occurred: The employer has ceased doing business and all wages and fringe
benefits have been paid, or the employer has been doing business in this state
for at least five consecutive years one year and has paid all
wages and fringe benefits. The approval of the commissioner will be granted
only after the commissioner has determined that the wages and fringe benefits
of all employees have been paid. The bond may also be terminated upon a
determination by the commissioner that an employer is of sufficient financial
responsibility to pay wages and fringe benefits.
?21-5-15. Violations; cease and desist orders and appeals therefrom;
criminal penalties.
(a) Any
person, firm or corporation who knowingly and willfully fails to provide and
maintain an adequate bond as required by section fourteen of this article is
guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less
than $200 nor more than $5,000, or imprisoned in the county jail not more than
one month, or both fined and imprisoned.
(b) Any
person, firm or corporation who knowingly, willfully and fraudulently disposes
of or relocates assets with intent to deprive employees of their wages and
fringe benefits is guilty of a felony and, upon conviction thereof, shall be
fined not less than $5,000 nor more than $30,000 $60,000, or
imprisoned in the penitentiary state correctional facility not
less than one nor more than three years, or both fined and imprisoned.
(c) (1)
At any time the commissioner determines that a person, firm or corporation has
not provided or maintained an adequate bond, as required by section fourteen of
this article, the commissioner shall issue a cease and desist order which is to
be issued and posted requiring that said person, firm or corporation either
post an adequate bond or cease further operations in this state within a period
specified by the commissioner; which period shall be not less than five nor
more than fourteen days. The cease and desist order may be issued by the
commissioner at his or her own instance or at his or her
direction, with or without application to or the approval of any other officer,
agent, department or employee of the state or application to any court for approval
thereof. Any person, firm or corporation who continues to engage in
construction work or the severance, production or transportation of minerals
without an approved bond after such specified period shall be guilty of a
felony, and, upon conviction thereof, shall be fined not less than $5,000 nor
more than $30,000, or imprisoned in the penitentiary not less than one nor more
than three years, or both fined and imprisoned. Any cease and desist order
issued by the commissioner pursuant to this subsection may be directed by the
commissioner to the sheriff of the county wherein the business activity of
which the order is the subject, or to any officer or employee of the
department, commanding such sheriff, officer or employee to serve such order
upon the business in question within seventy-two hours and to make proper
return thereof.
(2) Any
other provision of law to the contrary notwithstanding, any person against whom
a cease and desist order has been directed shall be entitled to judicial review
thereof by filing a verified petition taking an appeal therefrom within fifteen
days from the date of service of such order. Such verified petition shall be
filed in the circuit court of the county wherein service of the order was
completed, at the option of the petitioner, or, in the circuit court of Kanawha
County, West Virginia. If the appeal is not perfected within such fifteen day
period, the cease and desist order shall be final and shall not thereafter be
subject to judicial review. No appeal shall be deemed to have been perfected
except upon the filing with the clerk of the circuit court of the county
wherein the appeal is taken, of a bond or other security to be approved by the
court, in an amount of not less than the amount of the bond otherwise required
to be posted under the provisions of section fourteen of this article. The
person so filing a petition of appeal shall cause a copy of the petition and
bond or other posted security to be served upon the commissioner by certified
mail, return receipt requested, within seven days after the date upon which the
petition for appeal is filed.
(d) Any
person who threatens any officer, agent or employee of the department or other
person authorized to assist the commissioner in the performance of his or
her duties under any provision of section fourteen of this article or of
this section or who shall interfere with or attempt to prevent any such
officer, agent, employee or other person in the performance of such duties
shall be guilty of a felony, and, upon conviction thereof, shall be fined in an
amount of not less than $1,000 nor more than $3,000 or imprisoned in the
penitentiary not less than one nor more than three years, or both such fine and
imprisonment.
And,
That
both houses recede from their respective positions as to the title of the bill
and agree to the same as follows:
Com. Sub. for S. B. 224 ? ?A Bill to amend and reenact ?21-5-14 and
?21-5-15 of the Code of West Virginia, 1931, as amended, relating to the
requirement of a bond for wages and benefits for certain designated employers,
persons, firms, or corporations generally; lowering period of time for the
requirement that certain designated employers, persons, firms or corporations
shall furnish a bond for wages and benefits to at least one year; providing
exemptions for employers, persons, firms, or corporations who have been in
business in another state for at least five years, employers, persons, firms or
corporations who have at least $100,000 in assets or employers, persons, firms,
or corporations who are a subsidiary of a parent company that has been in
business for at least five years; lowering period of time in which a person,
firm or corporation is required to file a statement or copy with the Bureau of
Employment Programs; lowering period of time employer must have been doing
business in order to terminate bond; increasing the maximum criminal fine for
any person, firm or corporation who knowingly, willfully and fraudulently
disposes of or relocates assets with the intent to deprive employees of their
wages and fringe benefits from $30,000 to $60,000; and making corrections to
current code.?
????????????????? Respectfully
submitted,
|
Chandler Swope, Chair??? |
Roger Hanshaw, Chair, |
Robert L. Karnes, |
Geoff Foster, |
Richard Ojeda, ??? Conferees on the part of the Senate. |
Barbara
Fleischauer, Conferees on the part of
the House ???????? of Delegates. |
??????????? On
motion of Delegate Hanshaw, the report of the Committee of Conference was
adopted.
??????????? The bill, as amended by said report,
was then put upon its passage.
??????????? On the passage of the bill, the yeas
and nays were taken (Roll No. 599),
and there were--yeas 63, nays 37, absent and not voting none, with the nays
being as follows:
??????????? Nays: Baldwin, Barrett, Bates,
Brewer, Byrd, Canestraro, Caputo, Cooper, Diserio, Eldridge, E. Evans, Ferro,
Fleischauer, Fluharty, Hicks, Hornbuckle, Iaquinta, Isner, Kelly, Longstreth,
Love, Lovejoy, Lynch, Marcum, Miley, R. Miller, Moye, Pethtel, Pushkin, Pyles,
Robinson, Rodighiero, Rowe, Sponaugle, Thompson, Wagner and Williams.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 224) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Delegate Capito, from the Committee of Conference
on matters of disagreement between the two houses, as to
S.
B. 554, Relating to false swearing in
legislative proceeding,
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
??????????? ?That the House of Delegates recede from its
amendments to the bill.
?????
Respectfully submitted,
|
???
?Ryan Weld,
Chair, ???? Charles H. Clements, ???? Robert D. Beach, ??????? Conferees
on the part of the Senate. |
Moore
Capito, Chair, Charlotte
R. Lane, Barbara
Fleischauer, Conferees on the part of the ???
House of Delegates. |
??????????? On
motion of Delegate Capito, the report of the Committee of Conference was
adopted.
??????????? The bill, as amended by said report,
was then put upon its passage.
??????????? On the passage of the bill, the yeas and nays were
taken (Roll No. 600), and there
were--yeas 97, nays 3, absent and not voting none, with the nays being as
follows:
??????????? Nays: Cooper, Kelly and Marcum.
??????????? So, a
majority of the members present and voting having voted in the affirmative, the
Speaker
declared the bill (S. B. 554) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Delegate Criss, from the Committee of Conference
on matters of disagreement between the two houses, as to
S.
B. 172, Eliminating salary for Water
Development Authority board members,
Submitted the following report, which
was received:
Your Committee of Conference on the
disagreeing votes of the two houses as to the
That both houses agree to the House
amendment to the bill on page two, section four;
And,
?That the Senate and House agree to an
amendment on page two, section four, line thirty-six, after the word ?board?,
by striking out ?in a manner consistent with guidelines of the travel
management office of the Department of Administration.? and inserting in lieu
thereof the following:
?in the following manner: Each board member who lives more than
fifty miles from the location where the meetings are held may receive the sum
of one hundred thirty-one dollars per day as per diem allowance for any day on
which such a meeting is held. Each board member who lives fifty miles or fewer
from the location where the meetings are held may receive the sum of fifty-five
dollars per day as the per diem allowance. In addition, each board member may
be reimbursed for overnight commuting expenses at the mileage rate equal to the
amount paid by the travel management office of the Department of Administration
for the most direct usually traveled route, if travel is by private automobile,
or for actual transportation costs for direct route travel, if travel is by
public carrier, or for any combination of the means of transportation actually
used, plus the costs of necessary taxi or limousine service, tolls and parking
fees in connection with the travel: Provided,
That the total of this per diem allowance plus travel expense for a daily
commuting board member may not exceed one hundred thirty-one dollars per day.
The amount for mileage paid pursuant to this subsection may change from time to
time in accordance with changes in the level of reimbursement by the travel
management office.?
And,
That both houses agree to a new title, to read as follows:
S. B. 172 ? ?A Bill to
amend and reenact ?22C-1-4 of the Code of West Virginia, 1931, as amended,
relating to the Water Development Authority; eliminating the salary for
appointed board members effective July 1, 2017; authorizing appointed board
members receive same compensation for attending official meetings or engaging
in official duties at rate not to exceed amount paid to members of Legislature
for interim duties as recommended by Citizens Legislative Compensation
Commission and authorized by law; permitting reimbursement for reasonable and
necessary expenses actually incurred in the performance of duties as member of
board; providing manner in which expenses may be reimbursed; setting per diem
allowances; permitting board members to be reimbursed for overnight commuting
expenses; setting manner for calculating reimbursement rates; setting cap on
per diem allowance and travel expenses for daily commuting board member; and
permitting amount for mileage paid to change from time to time under certain
conditions.?
??????????????????????????????????????????????????????????????????????? Respectfully
submitted,
Craig Blair, Chair,?????????????????????????????? ???? ?????? ?????Vernon Criss, Chair,
Randy Smith,????????????????????????????????????? ????? ????? ?????Martin Atkinson, III,
Mike Woelfel,????????????????????????????????????????????????? ???? John Williams,
??????????? Conferees on the part of the Senate. ????? ????? ????????Conferees
on the part of the House
??????????????????????????????????????????????????????????????????????????????????? of
Delegates.
??????????? On
motion of Delegate Criss, the report of the Committee of Conference was
adopted.
The bill, as amended by said report, was
then put upon its passage.
On the passage of the bill, the yeas and
nays were taken (Roll No. 601), and
there were--yeas 96, nays 4, absent and not voting none, with the nays being as
follows:
Nays: Cooper, Eldridge, Kelly and
Marcum.
So, a majority of the members present
and voting having voted in the affirmative, the Speaker declared the bill (S.
B. 172) passed.
Delegate Cowles moved that the bill take
effect July 1, 2017.
On this question, the yeas and nays were
taken (Roll No. 602), and there
were--yeas 95, nays 5, absent and not voting none, with the nays being as
follows:
Nays: Cooper, Eldridge, Isner, Kelly and
Marcum.
So, two thirds of the members elected to
the House of Delegates having voted in the affirmative, the Speaker declared
the bill (S. B. 172) takes effect July 1, 2017.
Ordered, That the Clerk of the House
communicate to the Senate the action of the House of Delegates.
??????????? A
message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the House of Delegates amendment, with amendment, and the
passage, as amended, of
??????????? Com.
Sub. for S. B. 76, Creating WV Second Chance for Employment Act.
??????????? On motion of Delegate Cowles, the
House concurred in the following amendment of the bill by the Senate:
??????????? On page one, 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 ?61-11B-1, ?61-11B-2, ?61-11B-3, ?61-11B-4, and ?61-11B-5,
all to read as follows:
ARTICLE
11B.? CRIMINAL OFFENSE REDUCTION.?
?61-11B-1.
Legislative Intent.
??????????? It
is the Legislature?s intention in enacting this article to establish a
procedure whereby individuals convicted of certain criminal offenses may,
pursuant to the provisions of this article, obtain a reduced offense of
conviction. In enacting this article, it is also the Legislature?s intent to
improve the employment possibilities of certain persons while allowing the
public notice of their actual conduct and prior transgressions without further
penalty or diminution of employment opportunities.
?61-11B-2. Definitions.
(a) As used in this
article, the following words and phrases shall have the meanings given to them
in this section unless the context clearly indicates otherwise:
??????????? (1)
?Criminal offense reduction? means the reduction of a qualifying felony offense
to a misdemeanor offense pursuant to this article.
??????????? (2)
?Excluded offense? means:
??????????? (A)
An offense which involves the infliction of serious physical injury;
(B) A sexual offense,
including, but not limited to, a violation of the felony provisions of article
eight, eight-b, eight-c, or eight-d of this chapter;
(C) An offense which
involves the use or exhibition of a deadly weapon or dangerous instrument;
(D) A felony violation of
the provisions of section nine, article two of this chapter;
(E) A felony violation of
the provisions of section twenty-eight, article two of this chapter;
(F) A felony violation of
article four, chapter seventeen-b of this code; or
(G) A felony, the facts
and circumstances of which the circuit court finds to be inconsistent with the
purposes of this article.
??????????? (3)
?Non-violent felony? means a felony conviction in a circuit court of this
state, which the circuit court finds is not (i) an excluded offense as defined
in subdivision (2) of this article, and (ii) which does not involve violence or
potential violence to another person or the public.
??????????? (4)
?Petitioner? means a person who has filed a petition seeking a criminal offense
reduction under the provisions of this article.
??????????? (5) ?Qualifying felony offense? means: a non-violent
felony offense that is not excluded from relief under this article.
??????????? (6)
?Reduced misdemeanor? means a legal status representing that a person
previously convicted of a non-violent qualifying felony has successfully
petitioned a circuit court to have the felony conviction reduced to the status
of a misdemeanor.
??????????? (7)
?Requisite time period? means ten years after completion of any sentence or
period of supervision or probation, whichever is later during which time there
has been no commission and conviction for a violation of law by the petitioner
other than for a minor traffic offense.
?61-11B-3. Criminal Offense Reduction.
(a) Subject to the
limitations and procedures set forth in this article, a person convicted of a
non-violent felony offense may seek a criminal offense reduction by petition to
the circuit court. If granted, the petitioner?s felony conviction shall be
vacated and the petitioner?s status will thereafter be designated on all
records relating to the offense as a ?reduced misdemeanor.? The petitioner?s
criminal record shall also reflect that he or she be granted such legal status
as is associated with being convicted of a misdemeanor and, except as provided
by the provisions of this article, the person shall not be deemed to have been
convicted of a felony for any legal purpose or restriction.
??????????? (b)
Notwithstanding any provision of law to the contrary, the reduced misdemeanor
provided for under this article may not be expunged as part of this petition or
by subsequent legal proceeding or petition.
??????????? (c)
There shall be no entitlement to a criminal offense reduction and the granting
of the petition shall remain in the discretion of the circuit court.
??????????? (d)
Nothing in the section may be construed to allow a person obtaining relief
pursuant to this article to be eligible for reinstatement of any retirement or
employment benefit which he or she lost or forfeited due to the felony
conviction or convictions vacated and reduced to the status of a misdemeanor.
?61-11B-4. Petition for reduction.
??????????? (a)
A person seeking a criminal offense reduction under this article shall file
with the circuit court a petition, in a form and manner set forth by the West
Virginia Supreme Court of Appeals.
??????????? (b)
Any person filing a petition pursuant to the provisions of this article shall
pay the filing fee set by the provisions of subdivision (1), subsection (a),
section eleven, article one, chapter fifty-nine of this code: Provided, That in addition to the fee
required by the provisions of this subsection a petitioner shall pay a fee of
$100 which shall be deposited into a non-appropriated special revenue account
within the State Treasurer?s office to be known as the West Virginia State
Police Criminal History Account, said fee to be used to offset costs to the
State Police for actions to facilitate the operation of this article.
??????????? (c)
Each petition for criminal offense reduction filed 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 the
petitioner has been known at any time;
??????????? (2)
All of petitioner?s addresses from the date of the offense for which a criminal
offense reduction order is sought to the date of the filing 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 case number;
??????????? (5)
The offense or offenses with which petitioner was charged and of which
petitioner was convicted and the statutory citations therefor.
??????????? (6)
The names of any victim or victims, or where there are no identifiable victims
such shall be stated;
??????????? (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 sentence imposed;
??????????? (9)
The reasons a criminal offense reduction is sought, such as, but not limited
to, employment or licensure purposes, and arguments in support thereof;
(10) The date upon which
he or she completed any sentence or period of supervision or probation;
(11) An express averment
by the petitioner that he or she has neither committed nor been convicted of a
violation of law;
(12) The action the
petitioner has taken since the time of the offense or offenses toward personal
rehabilitation, including treatment, work or other personal history that
demonstrates rehabilitation;
(13) Whether petitioner
has ever been granted criminal offense reduction, expungement or similar relief
regarding a criminal conviction by any court in this state, any other state or
by any federal court; and
(14) Any supporting
documents, sworn statements, affidavits or other information supporting the
petition to reduce criminal offense.
??????????? (d)
A copy of the petition, with any supporting documentation, shall be served by
petitioner pursuant to the West Virginia Rules of Civil Procedure 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 circuit court of conviction, if the petition is filed in
another circuit; the superintendent or warden of any state correctional
facility in which the petitioner was imprisoned; and any state and local
government agencies the records of which would be affected by the proposed criminal
offense reduction.
??????????? (e)
The prosecuting attorney of the county in which the petition is filed shall
serve by first class mail the petition for criminal offense reduction,
accompanying documentation and any proposed criminal offense reduction order to
any identified victims.
??????????? (f)
Upon receipt of a petition for criminal offense reduction, 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 circuit court of conviction, if the petition is
filed in another circuit; any state and local government agencies the records
of which would be affected by the proposed criminal offense reduction and any
interested individual or agency that desires to oppose the criminal offense
reduction shall, within thirty days of receipt of the petition, file a notice
of opposition with the court with supporting documentation and sworn statements
setting forth the reasons for resisting the petition for criminal offense reduction.
A copy of any notice of opposition with supporting documentation and sworn
statements shall be served upon the petitioner or his or her counsel in
accordance with West Virginia Rules of Civil Procedure. The petitioner may file
a reply no later than fifteen days after service of any notice of opposition to
the petition for criminal offense reduction.
??????????? (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 criminal offense reduction is sought
are qualifying offenses and are the only convictions against petitioner;
??????????? (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)
That the petitioner has neither committed nor been convicted of a violation of
law in the preceding ten years;
??????????? (4)
That petitioner has no criminal charges pending against him or her;
??????????? (5)
That the criminal offense reduction is consistent with the public welfare;
??????????? (6)
That petitioner has, by his or her behavior since the conviction or
convictions, evidenced that he or she has been rehabilitated and has remained
law-abiding; and
??????????? (7)
Any other matter deemed appropriate or necessary by the court to make a
determination regarding the petition for criminal offense reduction.
??????????? (h)
Within one hundred eighty days of the filing of a petition for criminal offense
reduction or as soon thereafter as is practicable 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 reduction.
??????????? (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 evidence of 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 criminal offense reduction with
appropriate findings of fact and conclusions of law.
??????????? (j)
If the court grants the petition for criminal offense reduction, it shall order
any records in the custody of the court, and of any other agency or official,
including law-enforcement records, to reflect reduction of the felony offense
to the status of reduced misdemeanor. Every agency with records relating to the
arrest, charge or other matters arising out of the arrest or conviction that is
ordered to reflect the criminal offense reduction in its records shall certify
to the court within ninety days of the entry of the criminal offense reduction
order that the required reduction has been completed: Provided, That upon inquiry by a prospective employer or on an
application for employment, credit or other type of application, he or she
shall disclose the existence of the reduced misdemeanor and acknowledgement of
the prior conviction if asked about prior convictions or crimes.???????????
(k) Upon granting of
criminal offense reduction, the person whose felony offense has been reduced
under the provisions of this article 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 that he or she has a felony conviction.
?61-11B-5. Employer protections.
(a) A cause of action may not be
brought against an employer, general contractor, premises owner, or other third
party solely based on the employer, general contractor, premises owner, or
other third party employing a person or independent contractor who has been
convicted of a nonviolent, non-sexual offense or a person who has had his or
her conviction reduced pursuant to this article.
(b) In a negligent hiring
action against an employer, general contractor, premises owner, or other third
party for the acts of an employee or independent contractor that is based on a
theory of liability other than that described by subsection (a) of the section,
the fact that the employee or independent contractor was convicted of a
nonviolent, non-sexual offense or had his or her conviction reduced pursuant to
this article before the employee or independent contractor?s employment or
contractual obligation with the employer, general contractor, premises owner,
or other third party, as applicable, may not be introduced into evidence.
(c) This section does not
preclude any existing cause of action for failure of an employer or other
person to provide adequate supervision of an employee or independent
contractor, except that the fact that the employee or independent
contractor has been convicted of a nonviolent, non-sexual criminal offense
or had his or her conviction reduced pursuant to this article may be introduced
into evidence in the suit only if the employer:
(1) Knew of the conviction or was
grossly negligent in not knowing of the conviction or reduced offense; and
(2) The conviction or reduced
offense was directly related to the nature of the employee?s or
independent contractor?s work and the conduct that gave rise to the alleged
injury that is the basis of the suit.
(d) This section shall not be
interpreted as implying a cause of action exists for negligent hiring of a
person based upon his or her criminal record in factual situations not covered
by the provisions of this section.?
??????????? And,
??????????? By amending the title of the bill to
read as follows:
Com. Sub. for S. B. 76 ?-
?A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto
a new article, designated ?61-11B-1, ?61-11B-2, ?61-11B-3, ?61-11B-4, and
?61-11B-5, all relating to establishment of a criminal offense reduction program;
creating the criminal offense classification of reduced misdemeanor; setting
forth legislative intent; setting forth definitions; allowing persons convicted
of certain criminal felony offenses to petition under specified circumstances
for reduction of the felony to misdemeanor status; setting forth limitations;
providing for reduced offense status to be reflected on criminal records;
expressly providing that reduction of felony offense means person shall not be
deemed as being convicted of a felony for certain legal purposes or
restrictions; clarifying that a reduced misdemeanor may not be expunged;
clarifying that criminal offense reduction is in the discretion of the circuit
court; establishing procedures for petition to the court; requiring payment of
a filing fee when filing petition; directing a fee be paid to the State Police
to offset costs associated with facilitating the purposes of this article;
setting forth information to be included on the petition; providing for
notification of petition to certain persons; requiring prosecuting attorney to
contact identified victims; providing for notice of opposition to the petition
by certain persons; establishing burden and standard of proof for petitions;
providing for a hearing and setting forth procedures; providing for entry of an
order by the court; authorizing court to enter an order directing certain
records to reflect reduction of a felony offense to the status of reduced
misdemeanor; requiring certification of compliance to the court; and providing
for disclosure requirements; and granting employers limited civil immunity for
hiring of convicted felons and persons in reduced misdemeanor status and
exceptions thereto.?
??????????? The
question being on the passage of the bill, the yeas and nays were taken (Roll No. 603), and there were--yeas
92, nays 8, absent and not voting none, with the nays being as follows:
??????????? Nays: Speaker Armstead, Cooper,
Cowles, Fast, G. Foster, Gearheart, Howell and Kelly.
??????????? So, a majority of the members
present and voting having voted in the affirmative, the Speaker declared the
bill (Com. Sub. for S. B. 76) passed.
??????????? Ordered,
That the Clerk of the House communicate to the Senate the action of the House
of Delegates.
Messages from the Senate
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence by the Senate in the amendment of the House of Delegates to the
amendment of the Senate, and the passage, as amended, of
??????????? Com. Sub. for H. B. 2526,
Classifying additional drugs to Schedules I, II, IV and V of controlled
substances,
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence by the Senate in the title amendment of the House of Delegates to
the amendment of the Senate, and the passage, as amended, of
??????????? Com.
Sub. for H. B. 2711,
Abolishing regional educational service agencies and providing for the transfer
of property and records.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had receded from its amendments to, and passed,
??????????? Com.
Sub. for H. B. 2555,
Relating to tax credits for apprenticeship training in construction trades,
??????????? Com.
Sub. for H. B. 2561, Relating
to public school support,
??????????? And,
??????????? Com.
Sub. for H. B. 2731,
Clarifying civil actions heard in circuit court,
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the amendment of the House of Delegates and the passage, as
amended, to take effect August 1, 2017, of
??????????? Com. Sub. for S. B. 40,
Requiring inclusion of protocols for response to after-school emergencies in
school crisis response plans.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the amendments of the House of Delegates and the passage, as
amended, of
??????????? Com. Sub. for S. B. 187,
Providing for confidentiality of patients? medical records,
??????????? S. B. 235, Relating to
motorcycle registration renewal,
??????????? Com.
Sub. for S. B. 239, Limiting use
of wages by employers and labor organizations for political activities,
??????????? Com. Sub. for S. B. 255,
Relating generally to filling vacancies in elected office.
??????????? Com. Sub. for S. B. 339,
Creating Legislative Coalition on Chronic Pain Management,
??????????? Com.
Sub. for S. B. 345, Allowing
certain hunting and trapping on private lands on Sundays,
??????????? Com.
Sub. for S. B. 360, Creating
Legislative Coalition on Diabetes Management,
??????????? Com.
Sub. for S. B. 388, Relating to
dangerous weapons,
??????????? Com.
Sub. for S. B. 402, Relating to
covenants not to compete between physicians and hospitals,
??????????? S.
B. 490, Clarifying standard
of liability for officers of corporation,
??????????? Com.
Sub. for S. B. 535, Reorganizing
Division of Tourism,
??????????? S.
B. 547, Modifying fees paid
to Secretary of State,
??????????? S. B. 578, Relating generally
to copies of health care records furnished to patients,
??????????? Com.
Sub. for S. B. 602, Creating
uniform system of recording and indexing fictitious names used by sole
proprietors,
??????????? Com.
Sub. for S. B. 622, Relating
generally to tax procedures and administration,
??????????? Com.
Sub. for S. B. 631, Prosecuting
violations of municipal building code,
??????????? Com. Sub. for S. B. 656, Relating to Student Data Accessibility, Transparency and
Accountability Act,
??????????? S. B. 686,
Exempting facilities governed by DHHR that provide direct patient care,
??????????? And,
??????????? S. B. 691,
Relating to off-road vehicles.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the amendment of the House of Delegates and the passage, as
amended, to take effect from passage, of
??????????? Com.
Sub. for S. B. 523, Converting to biweekly pay cycle for state employees,
??????????? And,
??????????? S.
B. 687, Relating generally to coal mining, safety and environmental
protection.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the title amendment of the House of Delegates and the passage,
as amended, to take effect July 1, 2017, of
??????????? Com.
Sub. for S. B. 486, Relating to
health care provider taxes.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the amendments of the House of Delegates to, and the passage, as
amended, with its House of Delegates amended title, of
??????????? S.
B. 174, Exempting
transportation of household goods from PSC jurisdiction.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
concurrence in the amendment of the House of Delegates and the adoption, as
amended, of
??????????? S.
C. R. 28, US Army SPC4
Randall W. Arbogast Memorial Road.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
that the Senate had passed, without amendment, a bill of the House of Delegates
as follows:
??????????? Com. Sub. for H. B. 2846,
Including high school students participating in a competency based pharmacy
technician education and training program as persons qualifying to be a
pharmacy technician trainee.
??????????? A message from the Senate, by
??????????? The Clerk of the Senate, announced
the adoption of the reports of the Committee of Conference on, and the passage,
as amended by said reports, in the passage of
??????????? Com.
Sub. for H. B. 2329,
Prohibiting the production, manufacture or possession of fentanyl,
??????????? Com.
Sub. for H. B. 2447,
Renaming the Court of Claims the state Claims Commission,
??????????? Com.
Sub. for H. B. 2579,
Increasing the penalties for transporting controlled substances,
??????????? Com.
Sub. for H. B. 2585,
Creating felony crime of conducting financial transactions involving proceeds
of criminal activity,
??????????? Com.
Sub. for H. B. 2589,
Permitting students who are homeschooled or attend private schools to enroll
and take classes at the county?s vocational school,
??????????? Com.
Sub. for H. B. 2631,
Relating to time standards for disposition of complaint proceedings,
??????????? Com.
Sub. for H. B. 2721,
Removing the cost limitation on projects completed by the Division of Highways,
??????????? And,
??????????? Com.
Sub. for H. B. 2722,
Eliminating the financial limitations on utilizing the design-build program for
highway construction.
Miscellaneous Business
Delegate
Hollen asked and obtained unanimous consent that
the remarks of Delegate Frich regarding the amendment offered by Delegates
Fluharty, Storch, Ferro and Canestraro to Com. Sub. for S. B. 437, on March 28,
be printed in the Appendix to the Journal.
Delegate
Caputo asked an obtained unanimous consent that the remarks of Delegate Love
regarding the introduction of Jim Bowen, be printed in the Appendix to the
Journal.
Delegate Nelson noted to the Clerk that
he was absent on today when the votes were taken on Roll Nos. 523, 524, 530 and
531, and that had he been present, he would have voted ?Yea? thereon.
Delegate Criss noted to the Clerk that
he was absent on today when the vote was taken on Roll No. 551, and that had he
been present, he would have voted ?Yea? thereon.
At
11:58 p.m., the House of Delegates adjourned until 12:15 a.m., Sunday, April 9,
2017.