hdj2010-03-12-59
__________*__________
Friday, March 12, 2010
FIFTY-NINTH
DAY
[Mr. Speaker, Mr. Thompson, in the Chair]
The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Richard
Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Thursday, March 11, 2010, being the first order
of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report,
which was received:
Your Committee on Rules has had under consideration:
H. C. R. 108, The "Joseph Homer Lloyd Bridge",
And,
H. C. R. 127, The "Ray P. Reip Memorial Bridge",
And reports the same back with the recommendation that they each be adopted.
On motion for leave, resolutions were introduced (Originating in the Committee on
Education and reported with the recommendation that they each be adopted), which was read by their
titles, as follows:
By Delegates M. Poling, Paxton, Beach, Crosier, Ennis, Lawrence, Louisos, Moye,
Pethtel, Shaver, Smith, Stowers, Williams, Duke, Canterbury, Ireland, Shott and
Sumner:
H. C. R. 128 - "Requesting the Joint Committee on Government and Finance to conduct a
study on the value of including Family and Consumer Sciences and Technology Education courses
in the middle school curriculum."
Whereas, Family and Consumer Sciences programs at the middle school level are based on
curriculum and instruction standards that include project-based learning and hands-on involvement
to develop in students the practical problem solving, decision-making, higher order thinking,
communication, literacy, and numerical skills aimed at helping all students increase their ability to
act responsibly and productively, work cooperatively, synthesize knowledge from multiple sources,
apply concepts of balancing school/work and family and maintain healthy lifestyles; and
Whereas, Technology Education programs employ technological processes for problem
solving, creating and designing using the application of scientific principles, engineering concepts
and technological systems that lead to the development of technologically literate students and help
them discover and develop personal interests and abilities related to a wide variety of technology
oriented careers; and
Whereas, Family and Consumer Sciences and Technology Education courses provide
relevant and engaging course work in the middle school curriculum that help students explore their
career interests, connect the importance of performing well in school to their future aspirations and
focus on preparing for a more rigorous program of studies at the secondary level; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a study
on the value of including Family and Consumer Sciences and Technology Education courses in the
middle school curriculum; and, be it
Further Resolved, That the said Joint Committee on Government and Finance is requested
to report to the regular session of the Legislature, 2011, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
draft necessary legislation are requested to be paid from legislative appropriations to the Joint
Committee on Government and Finance.
By Delegates M. Poling, Paxton, Beach, Crosier, Ennis, Lawrence, Louisos, Moye,
Pethtel, Shaver, Smith, Stowers, Williams, Duke, Canterbury, Ireland, Shott and
Sumner:
H. C. R. 129 - "Requesting the Joint Committee on Government and Finance to conduct a
study on methods to ensure an accurate and stable determination of local share".
Whereas, An accurate determination of local share is essential for ensuring that the public
school support plan provides equity in funding among the school systems; and
Whereas, An accurate determination of local share ensures that the obligations of state and
the school systems both are met fully; and
Whereas, An accurate and stable determination of local share that is not subject to large
variations due to circumstances over which the school systems have no control is essential for school
systems to be able to plan and budget resources for their highest priority needs which may include
recurring obligations for items such as additional salary supplements; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a study
on methods to ensure an accurate and stable determination of local share; and, be it
Further Resolved, That the said Joint Committee on Government and Finance is requested
to report to the regular session of the Legislature, 2011, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
draft necessary legislation are requested to be paid from legislative appropriations to the Joint
Committee on Government and Finance.
And,
By Delegates M. Poling, Paxton, Beach, Crosier, Ennis, Lawrence, Louisos, Moye,
Pethtel, Shaver, Smith, Stowers, Williams, Duke, Canterbury, Ireland, Shott and
Sumner:
H. C. R. 130 - "Requesting the Joint Committee on Government and Finance to conduct a
study on flexibility for local schools and school systems to acquire and employ technology to improve student performance and progress."
Whereas, The Legislature recognizes that infusing technology for learning in the public
schools is critical for engaging a youth population exposed as a part of every day life to increasingly
available communication, information, and social networking technologies that heighten their
technological sophistication to unprecedented levels; and
Whereas, The Legislature has committed a growing level of resources for 21
st Century
Strategic Technology Learning to support multiple technology-based learning strategies to expand
the learning opportunities for students and prepare them for a world increasingly reliant upon
technology utilization; and
Whereas, The Legislature has recognized that individual school teams should develop plans
and revise their strategic school improvement plans, and counties should develop and revise their
county improvement plans, incorporating technology utilization for improving student learning
within the general goals established by the State Board; and
Whereas, As technology improves, or is updated, or as needs change, schools and counties
should have flexibility to acquire and employ the technology they determine necessary to improve
the performance and progress of their students; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a study
on flexibility for local schools and school systems to acquire and employ technology to improve
student performance and progress; and, be it
Further Resolved, That the said Joint Committee on Government and Finance is requested
to report to the regular session of the Legislature, 2011, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
draft necessary legislation are requested to be paid from legislative appropriations to the Joint
Committee on Government and Finance.
The Speaker referred the resolutions (H. C. R. 128, H. C. R. 129 and H. C. R. 130) to the
Committee on Rules.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4026, Relating to higher education capital facilities generally.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18-23-5, §18-23-13, §18-23-14, §18-23-15,
§18-23-18, §18-23-22, §18-23-23 and §18-23-24 of the Code of West Virginia, 1931, as amended,
be repealed; that §18B-14-1, §18B-14-2, §18B-14-3, §18B-14-4, §18B-14-5, §18B-14-5a, §18B-14-6
and §18B-14-7 of said code be repealed; that §5-6-4a of said code be amended and reenacted; that
§18B-1B-4 of said code be amended and reenacted; that §18B-2A-4 of said code be amended and
reenacted; that §18B-2B-6 of said code be amended and reenacted; that §18B-4-6 of said code be amended and reenacted; that §18B-5-4 of said code be amended and reenacted; that §18B-10-8 of
said code be amended and reenacted; and that said code be amended by adding thereto a new article,
designated §18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5, §18B-19-6, §18B-19-7,
§18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11, §18B-19-12, §18B-19-13, §18B-19-14, §18B-19-
15, §18B-19-16, §18B-19-17 and §18B-19-18, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 6. STATE BUILDINGS.
§5-6-4a. Review of real property contracts and agreements; master plan for office space.
(a) The Secretary of Administration shall provide to the Joint Committee on Government and
Finance a copy of a contract or agreement for real property exceeding $1 million and a report setting
forth a detailed summary of the terms of the contract or agreement, including the name of the owner
of the property and the agent involved in the sale, at least thirty days prior to any sale, exchange,
transfer, purchase, lease purchase, lease or rental of real property, any refundings of lease purchases,
leases or rental agreements, any construction of new buildings and any other acquisition or lease of
buildings, office space or grounds by any state agency,
including the Higher Education Policy
Commission but excepting the transactions of the
Higher Education Policy Commission, Council
for Community and Technical College Education, state institutions of higher education
known as
Marshall University and West Virginia University and the Division of Highways for state road
purposes pursuant to article two-a, chapter seventeen of this code:
Provided, That a contract or agreement for the lease purchase, lease or rental of real property by any state agency, where the costs
of real property acquisition and improvements are to be financed, in whole or in part, with bond
proceeds, may contain a preliminary schedule of rents and leases for purposes of review by the
committee.
(b) For renewals of contracts or agreements required to be reported by
the provisions of this
section, the Secretary of Administration shall provide a report setting forth a detailed summary of
the terms of the contract or agreement, including the name of the owner of the property.
(c) Within thirty days after receipt of the contract, agreement or report, the committee shall
meet and review the contract, agreement or report.
(d) On or before the first day of July, two thousand six, the Secretary of Administration shall
conduct an inventory of available office space and office space needs and shall develop and present
a master plan for the utilization of office space for state agencies to the Joint Committee on
Government and Finance.
(e) The governing boards of the state institutions of higher education known as Marshall
University and West Virginia University shall provide to the Joint Committee on Government and
Finance a copy of any contract or agreement for real property exceeding one million dollars and shall
make available to the Joint Committee on Government and Finance upon request a summary of the
terms of the contract or agreement, including the name of the owner of the property and the agent
involved in the sale.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-4. Powers and duties of Higher Education Policy Commission.
(a) The primary responsibility of the commission is to develop, establish and implement
policy that will achieve the goals and objectives found in section one-a, article one
and article one-d
of this chapter. The commission shall exercise its authority and carry out its responsibilities in a
manner that is consistent and not in conflict with the powers and duties assigned by law to the West
Virginia Council for Community and Technical College Education and the powers and duties
assigned to the governing boards of Marshall University and West Virginia University, respectively.
To that end, the commission, has the following powers and duties relating to the institutions under
its jurisdiction:
(1) Develop, oversee and advance the public policy agenda pursuant to section one, article
one-a of this chapter to address major challenges facing the state, including, but not limited to, the
goals and objectives found in section one-a, article one of this chapter
and article one-d of this
chapter and including specifically those goals and objectives pertaining to the compacts created
pursuant to section
two, article one-a seven, article one-d of this chapter and to develop and
implement the master plan described in section
nine of this article five, article one-d of this chapter
for the purpose of accomplishing the mandates of this section;
(2) Develop, oversee and advance the
promulgation and implementation
jointly with the
Council of a financing
policy rule for
state institutions of higher education
in West Virginia under
its
jurisdiction. The
policy rule shall meet the following criteria:
(A) Provide
for an adequate level of
education educational and general funding for
institutions pursuant to section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical
resources and
eliminating deferred maintenance;
(C) Invest and provide incentives for achieving the priority goals in the public policy agenda,
including, but not limited to, those found in section one-a, article one of this chapter; and
(D)
Incorporate the plan for strategic funding to strengthen capacity for support of community
and technical college education established by the West Virginia Council for Community and
Technical College Education pursuant to the provisions of section six, article two-b of this chapter;
Evaluate institutions' requests for tuition and fee increases except Marshall University and West
Virginia University which are subject to the provisions of section one, article ten of this chapter;
(3) In collaboration with the council, create a policy leadership structure capable of the
following actions:
(A) Developing, building public consensus around and sustaining attention to a long-range
public policy agenda. In developing the agenda, the commission and council shall seek input from
the Legislature and the Governor and specifically from the State Board of Education and local school
districts in order to create the necessary linkages to assure smooth, effective and seamless movement
of students through the public education and post-secondary education systems and to ensure that
the needs of public school courses and programs can be fulfilled by the graduates produced and the
programs offered;
(B) Ensuring that the governing boards carry out their duty effectively to govern the
individual institutions of higher education; and
(C) Holding the higher education institutions and the higher education systems as a whole
accountable for accomplishing their missions and implementing the provisions of the compacts;
(4) Develop and adopt each institutional compact;
(5) Review and adopt the annual updates of the institutional compacts;
(6) Serve as the accountability point to
state policymakers:
(A) The Governor for implementation of the public policy agenda; and
(B) The Legislature by maintaining a close working relationship with the legislative
leadership and the Legislative Oversight Commission on Education Accountability;
(7) Jointly with the council, promulgate legislative rules pursuant to article three-a, chapter
twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this chapter;
(8) Establish and implement a peer group for each institution as described in section three,
article one-a of this chapter;
(9) Establish and implement the benchmarks and performance indicators necessary to
measure institutional
achievement towards progress in achieving state policy priorities and
institutional missions pursuant to section
two, article one-a seven, article one-d of this chapter;
(10)
Annually Report to the Legislature and to the Legislative Oversight Commission on
Education Accountability
annually during the January interim
meetings meeting period on a date and
at a time and location to be determined by the President of the Senate and the Speaker of the House
of Delegates. The report shall address at least the following:
(A) The performance of its system of higher education during the previous fiscal year,
including, but not limited to, progress in meeting
goals stated in the compacts and progress of the
institutions and the higher education system as a whole in meeting the goals,
and objectives,
and
priorities set forth in
section one-a article one
and article one-d of this chapter
and in the
commission's master plan and institutional compacts;
(B) An analysis of enrollment data collected pursuant to section one, article ten of this
chapter and recommendations for any changes necessary to assure access to high-quality, high-demand education programs for West Virginia residents;
(C) (B) The
commission's priorities
established for
new operating and capital
investment
investments needs pursuant to subdivision (11) of this subsection and the justification for
such the
priority;
(D) (C) Recommendations of the commission for statutory changes
needed necessary or
expedient to
further the achieve state goals and objectives;
set forth in article one of this chapter
(11) Establish a formal process for identifying
needs for capital investment capital investment
needs and for determining priorities for these investments for consideration by the Governor and the
Legislature as part of the appropriation request process
pursuant to article nineteen of this chapter;
It is the responsibility of the Commission to assure a fair distribution of funds for capital projects
between the Commission and the Council. To that end the Commission shall take the following
steps:
(A) Receive the list of priorities developed by the Council for capital investment for the
institutions under the Council's jurisdiction pursuant to subsection (b), section six, article two-b of
this chapter;
(B) Place the ranked list of projects on the agenda for action within sixty days of the date on
which the list was received;
(C) Select a minimum of three projects from the list submitted by the Council to be included
on the ranked list established by the Commission. At least one of the three projects selected must
come from the top two priorities established by the Council;
(12) Maintain guidelines for institutions to follow concerning extensive capital project
management except the governing boards of Marshall University and West Virginia University are not subject to the provisions of this subdivision as it relates to the state institutions of higher
education known as Marshall University and West Virginia University. The guidelines shall provide
a process for developing capital projects, including, but not limited to, the notification by an
institution to the Commission of any proposed capital project which has the potential to exceed one
million dollars in cost. Such a project may not be pursued by an institution without the approval of
the Commission. An institution may not participate directly or indirectly with any public or private
entity in any capital project which has the potential to exceed one million dollars in cost;
(12) Develop standards and evaluate governing board requests for capital project financing
in accordance with article nineteen of this chapter;
(13) Ensure that governing boards manage capital projects and facilities needs effectively,
including review and approval or disapproval of capital projects, in accordance with article nineteen
of this chapter;
(13) (14) Acquire legal services
as that are considered necessary, including representation
of the commission, its institutions, employees and officers before any court or administrative body,
notwithstanding any other provision of this code to the contrary. The counsel may be employed
either on a salaried basis or on a reasonable fee basis. In addition, the commission may, but is not
required to, call upon the Attorney General for legal assistance and representation as provided by
law;
(14) (15) Employ a Chancellor for Higher Education pursuant to section five of this article;
(15) (16) Employ other staff as necessary and appropriate to carry out the duties and
responsibilities of the commission and the council, in accordance with
the provisions of article four
of this chapter;
(16) (17) Provide suitable offices in Charleston for the chancellor, vice chancellors and other
staff;
(17) (18) Advise and consent in the appointment of the presidents of the institutions of higher
education under its jurisdiction pursuant to section six of this article. The role of the commission
in approving an institutional president is to assure through personal interview that the person selected
understands and is committed to achieving the goals and objectives as set forth in the institutional
compact and in section one-a, article one of this chapter;
(18) (19) Approve the total compensation package from all sources for presidents of
institutions under its jurisdiction, as proposed by the governing boards. The governing boards
must
shall obtain approval from the commission of the total compensation package both when institutional
presidents are employed initially and afterward when any change is made in the amount of the total
compensation package;
(19) (20) Establish and implement the policy of the state to assure that parents and students
have sufficient information at the earliest possible age on which to base academic decisions about
what is required for students to be successful in college, other post-secondary education and careers
related, as far as possible, to results from current assessment tools in use in West Virginia;
(20) (21) Approve and implement a uniform standard jointly with the council to determine
which students shall be placed in remedial or developmental courses. The standard shall be aligned
with college admission tests and assessment tools used in West Virginia and shall be applied
uniformly by the governing boards throughout the public higher education system. The chancellors
shall develop a clear, concise explanation of the standard which they shall communicate to the State
Board of Education and the State Superintendent of Schools;
(21) Review and approve or disapprove capital projects as described in subdivision (11) of
this subsection;
(22) Jointly with the council, develop and implement an oversight plan to manage
systemwide technology
such as the following by:
(A) Expanding distance learning and technology networks to enhance teaching and learning,
promote access to quality educational offerings with minimum duplication of effort; and
(B) Increasing the delivery of instruction to nontraditional students, to provide services to
business and industry and increase the management capabilities of the higher education system;
(C) Notwithstanding any other provision of law or this code to the contrary, the council,
commission and state institutions of higher education are not subject to the jurisdiction of the Chief
Technology Officer for any purpose;
(23) Establish and implement policies and procedures to ensure that
students a student may
transfer and apply toward the requirements for a bachelor's degree the maximum number of credits
earned at any regionally accredited in-state or out-of-state community and technical college with as
few requirements to repeat courses or to incur additional costs as is consistent with sound academic
policy;
(24) Establish and implement policies and procedures to ensure that
students a student may
transfer and apply toward the requirements for a degree the maximum number of credits earned at
any regionally accredited in-state or out-of-state higher education institution with as few
requirements to repeat courses or to incur additional costs as is consistent with sound academic
policy;
(25) Establish and implement policies and procedures to ensure that
students a student may transfer and apply toward the requirements for a master's degree the maximum number of credits
earned at any regionally accredited in-state or out-of-state higher education institution with as few
requirements to repeat courses or to incur additional costs as is consistent with sound academic
policy;
(26) Establish and implement policies and programs, in cooperation with the council and the
institutions of higher education, through which
students a student who
have has gained knowledge
and skills through employment, participation in education and training at vocational schools or other
education institutions, or Internet-based education programs, may demonstrate by competency-based
assessment that
they have he or she has the necessary knowledge and skills to be granted academic
credit or advanced placement standing toward the requirements of an
associate associate's degree
or a bachelor's degree at a state institution of higher education;
(27) Seek out and attend regional, national and international meetings and forums on
education and workforce development-related topics, as in the commission's discretion is critical
for the performance of their duties as members, for the purpose of keeping abreast of education
trends and policies to aid it in developing the policies for this state to meet the established education
goals and objectives pursuant to section one-a, article one of this chapter
and article one-d of this
chapter;
(28)
Develop, establish Promulgate and implement a rule for higher education governing
boards and institutions to follow when considering capital projects
pursuant to article nineteen of this
chapter; The guidelines shall assure that the governing boards and institutions do not approve or
promote capital projects involving private sector businesses which would have the effect of reducing
property taxes on existing properties or avoiding, in whole or in part, the full amount of taxes which would be due on newly developed or future properties
(29) Consider and submit to the appropriate agencies of the executive and legislative
branches of state government
a budget an appropriation request that reflects recommended
appropriations
from for the commission and the institutions under its jurisdiction. The commission
shall submit as part of its
budget proposal appropriation request the separate recommended
appropriations it appropriation request received from the council, both for the council and the
institutions under the council's jurisdiction. The commission annually shall submit the proposed
institutional allocations based on each institution's progress toward meeting the goals of its
institutional compact;
(30) The commission
has the authority to may assess institutions under its jurisdiction,
including the state institutions of higher education known as Marshall University and West Virginia
University, for the payment of expenses of the commission or for the funding of statewide higher
education services, obligations or initiatives related to the goals set forth for the provision of public
higher education in the state;
(31) Promulgate rules allocating reimbursement of appropriations, if made available by the
Legislature, to institutions of higher education for qualifying noncapital expenditures incurred in
the
provision of providing services to students with physical, learning or severe sensory disabilities;
(32) Make appointments to boards and commissions where this code requires appointments
from the State College System Board of Directors or the University of West Virginia System Board
of Trustees which were abolished effective June 30, 2000, except in those cases where the required
appointment has a specific and direct connection to the provision of community and technical college
education, the appointment shall be made by the council. Notwithstanding any provisions of this code to the contrary, the commission or the council may appoint one of its own members or any
other citizen of the state as its designee. The commission and council shall appoint the total number
of persons in the aggregate required to be appointed by these previous governing boards;
(33) Pursuant to
the provisions of article three-a, chapter twenty-nine-a of this code and
section six, article one of this chapter, promulgate rules
as necessary or expedient to fulfill the
purposes of this chapter. The commission and the council shall promulgate a uniform joint
legislative rule for the purpose of standardizing, as much as possible, the administration of personnel
matters among the
state institutions of higher education;
(34) Determine when a joint rule among the governing boards of the institutions under its
jurisdiction is necessary or required by law and, in those instances, in consultation with the
governing boards of all the institutions under its jurisdiction, promulgate the joint rule;
(35)
In consultation with the governing boards of Marshall University and West Virginia
University, Promulgate and implement a
policy rule jointly with the council whereby course credit
earned at a community and technical college transfers for program credit at any other state institution
of higher education and is not limited to fulfilling a general education requirement;
(36)
By November 1, 2010, promulgate a
joint rule
with the council pursuant to section one,
article ten of this chapter, establishing tuition and fee policy for all institutions of higher education
under the jurisdiction of the commission,
other than including state institutions of higher education
known as Marshall University and West Virginia University
which are subject to the provisions of
section one, article ten of this chapter. The rule shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Such other policies as the commission and council consider appropriate;
(37) Implement general disease awareness initiatives to educate parents and students,
particularly dormitory residents, about meningococcal meningitis; the potentially life-threatening
dangers of contracting the infection; behaviors and activities that can increase risks; measures that
can be taken to prevent contact or infection; and potential benefits of vaccination. The commission
shall encourage institutions that provide medical care to students to provide access to the vaccine
for those who wish to receive it; and
(38) Notwithstanding any other provision of this code to the contrary, sell, lease, convey or
otherwise dispose of all or part of any real property
which it may own that it owns, in accordance
with article nineteen of this chapter. either by contract or at public auction, and to retain the proceeds
of any such sale or lease: Provided, That:
(A) The Commission may not sell, lease, convey or otherwise dispose of any real property
without first:
(i) Providing notice to the public in the county in which the real property is located by a Class
II legal advertisement pursuant to section two, article three, chapter fifty-nine of this code;
(ii) Holding a public hearing on the issue in the county in which the real property is located;
and
(iii) Providing notice to the Joint Committee on Government and Finance; and
(B) Any proceeds from the sale, lease, conveyance or other disposal of real property that is
used jointly by institutions or for statewide programs under the jurisdiction of the Commission or the Council shall be transferred to the General Revenue Fund of the state.
(b) In addition to the powers and duties listed in subsection (a) of this section, the
commission has the following general powers and duties related to its role in developing, articulating
and overseeing the implementation of the public policy agenda:
(1) Planning and policy leadership, including a distinct and visible role in setting the state's
policy agenda and in serving as an agent of change;
(2) Policy analysis and research focused on issues affecting the system as a whole or a
geographical region
thereof of the system;
(3) Development and implementation of institutional mission definitions, including use of
incentive funds to influence institutional behavior in ways that are consistent with public priorities;
(4) Academic program review and approval for institutions under its jurisdiction, including
the use of institutional missions as a template to judge the appropriateness of both new and existing
programs and the authority to implement needed changes. The commission's authority to review
and approve academic programs for either the state institution of higher education known as
Marshall University or West Virginia University is limited to programs that are proposed to be
offered at a new location not presently served by that institution;
(5) Distribution of funds appropriated to the commission, including incentive and
performance-based funding;
(6) Administration of state and federal student aid programs under the supervision of the Vice
Chancellor for Administration, including promulgation of any rules necessary to administer those
programs;
(7) Serving as the agent to receive and disburse public funds when a governmental entity requires designation of a statewide higher education agency for this purpose;
(8)
Development, establishment and implementation of Developing, establishing and
implementing information, assessment and accountability systems, including
maintenance of
maintaining statewide data systems that facilitate long-term planning and accurate measurement of
strategic outcomes and performance indicators;
(9) Jointly with the council,
developing, establishing promulgating and implementing
policies
rules for licensing and oversight for both public and private degree-granting and nondegree-granting
institutions that provide post-secondary education courses or programs in the state pursuant to the
findings and policy recommendations required by section eleven of this article;
(10)
Development, implementation and oversight of Developing, implementing and
overseeing statewide and
regionwide regional projects and initiatives related to providing post-
secondary education at the baccalaureate level and above such as those using funds from federal
categorical programs or those using incentive and performance-based funding from any source; and
(11) Quality assurance that intersects with all other duties of the commission particularly in
the areas of research, data collection and analysis, planning, policy analysis, program review and
approval, budgeting and information and accountability systems.
(c) In addition to the powers and duties provided in subsections (a) and (b) of this section and
any other powers and duties as may be assigned to it by law, the commission has
such any other
powers and duties
as may be necessary or expedient to accomplish the purposes of this article.
(d) The commission
is authorized to may withdraw specific powers of
any a governing board
of an institution under its jurisdiction for a period not to exceed two years, if the commission makes
a determination that
any of the following conditions exist:
(1) The governing board has failed for two consecutive years to develop
or implement an
institutional compact as required in article
one one-d of this chapter;
(2) The commission has received information, substantiated by independent audit, of
significant mismanagement or failure to carry out the powers and duties of the board of governors
according to state law; or
(3) Other circumstances which, in the view of the commission, severely limit the capacity
of the board of governors to carry out its duties and responsibilities.
The period of withdrawal of Specific powers
of a governing board may not
be withdrawn for
a period exceed exceeding two years. During
which that time the commission
is authorized to may
take
all steps necessary to
reestablish the conditions for restoration of restore sound, stable and
responsible institutional governance.
ARTICLE 2A. BOARDS OF GOVERNORS.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the following powers and duties:
(a) Determine, control, supervise and manage the financial, business and education policies
and affairs of the state institution of higher education under its jurisdiction;
(b) Develop a master plan for the institution under its jurisdiction.
(1) The ultimate responsibility for developing and updating
the each master
plans plan at the
institutional level resides with the board of governors, but the ultimate responsibility for approving
the final version of
the each institutional master
plans plan, including periodic updates, resides with
the commission or council, as appropriate.
(2) Each
institutional master plan shall include, but not be limited to, the following:
(A) A detailed demonstration of how the
institutional master plan will be used to meet the
goals and objectives of the institutional compact;
(B) A well-developed set of goals outlining missions, degree offerings, resource
requirements, physical plant needs, personnel needs, enrollment levels and other planning
determinates and projections necessary in a plan to assure that the needs of the institution's area of
responsibility for a quality system of higher education are addressed;
(C)
Document the involvement of Documentation showing how the governing board
involved the commission or council, as appropriate, institutional constituency groups, clientele of
the institution and the general public in the development of all segments of the institutional master
plan.
(3) The plan shall be established for periods of not
less fewer than three nor more than five
years and shall be revised periodically as necessary, including
the addition or deletion of adding or
deleting degree programs as
the governing board in
the its discretion
of the appropriate governing
board, are determines is necessary;
(c) Develop a ten-year campus development plan in accordance with article nineteen of this
chapter;
(c) (d) Prescribe for the institution, under its jurisdiction, in accordance with its master plan
and compact, specific functions and responsibilities to achieve the goals, objectives and priorities
established in articles one and one-d of this chapter to meet the higher education needs of its area
of responsibility and to avoid unnecessary duplication;
(d) (e) Direct the preparation of
a budget an appropriation request for the institution under
its jurisdiction, which relates directly to missions, goals and projections as found in the institutional master plan and the institutional compact;
(e) (f) Consider, revise and submit to the commission or council, as appropriate,
a budget an
appropriation request on behalf of the institution under its jurisdiction;
(f) (g) Review, at least every five years, all academic programs offered at the institution under
its jurisdiction. The review shall address the viability, adequacy and necessity of the programs in
relation to established state goals, objectives and priorities, the institutional master plan, the
institutional compact and the education and workforce needs of its responsibility district. As a part
of the review, each governing board shall require the institution under its jurisdiction to conduct
periodic studies of its graduates and their employers to determine placement patterns and the
effectiveness of the education experience. Where appropriate, these studies should coincide with
the studies required of many academic disciplines by their accrediting bodies;
(g) (h) Ensure that the sequence and availability of academic programs and courses offered
by the institution under its jurisdiction is such that students have the maximum opportunity to
complete programs in the time frame normally associated with program completion. Each governing
board is responsible to see that the needs of nontraditional college-age students are appropriately
addressed and, to the extent it is possible for the individual governing board to control, to assure core
course work completed at the institution
under its jurisdiction is transferable to any other state
institution of higher education for credit with the grade earned;
(h) (i) Subject to
the provisions of article one-b of this chapter, approve the teacher education
programs offered in the institution under its control. In order to permit graduates of teacher
education programs to receive a degree from a nationally accredited program and in order to prevent
expensive duplication of program accreditation, the commission may select and use one nationally recognized teacher education program accreditation standard as the appropriate standard for program
evaluation;
(i) (j) Use Involve faculty, students and classified employees in institutional-level planning
and decisionmaking when those groups are affected;
(j) (k) Subject to the provisions of federal law and pursuant to
the provisions of article
articles seven, eight and nine of this chapter and to rules adopted by the commission and the council,
administer a system for the management of personnel matters, including, but not limited to,
personnel classification, compensation and discipline for employees at the institution under its
jurisdiction;
(k) (l) Administer a system for hearing employee grievances and appeals. Notwithstanding
any other provision of this code to the contrary, the procedure established in article two, chapter six-c
of this code is the exclusive mechanism for hearing prospective employee grievances and appeals;
(l) (m) Solicit and use or expend voluntary support, including financial contributions and
support services, for the institution under its jurisdiction;
(m) (n) Appoint a president for the institution under its jurisdiction subject to
the provisions
of section six, article one-b of this chapter;
(n) (o) Conduct written performance evaluations of the president pursuant to section six,
article one-b of this chapter;
(o) (p) Employ all faculty and staff at the institution under its jurisdiction. The employees
operate under the supervision of the president, but are employees of the governing board;
(p) (q) Submit to the commission or council, as appropriate,
no later than the first day of
November of each year an annual report of the performance of the institution under its jurisdiction during the previous fiscal year as compared to established state goals, objectives, and priorities, and
goals stated in its master plan and institutional compact; any data or reports requested by the
commission or council, as appropriate, within the time frame set by the commission or council;
(q) (r) Enter into contracts or consortium agreements with the public schools, private schools
or private industry to provide technical, vocational, college preparatory, remedial and customized
training courses at locations either on campuses of the
public institution state institutions of higher
education or at off-campus locations in the institution's responsibility district. To accomplish this
goal, the boards may share resources among the various groups in the community;
(r) (s) Provide and transfer funding and property to certain corporations pursuant to section
ten, article twelve of this chapter;
(s) (t) Delegate, with prescribed standards and limitations, the part of its power and control
over the business affairs of the institution to the president in any case where it considers the
delegation necessary and prudent in order to enable the institution to function in a proper and
expeditious manner and to meet the requirements of its master plan and
institutional compact. If a
governing board elects to delegate any of its power and control under
the provisions of this
subsection, it shall enter the delegation in the minutes of the meeting when the decision was made
and shall notify the commission or council, as appropriate. Any delegation of power and control may
be rescinded by the appropriate governing board, the commission or council, as appropriate, at any
time, in whole or in part, except that the commission may not revoke delegations of authority made
by the governing boards of Marshall University or West Virginia University as they relate to the state
institutions of higher education known as Marshall University and West Virginia University;
(t) (u) Unless changed by the commission or the council, as appropriate, continue to abide by existing rules setting forth standards for acceptance of advanced placement credit for the
institution under its jurisdiction. Individual departments at a state institution of higher education
may, upon approval of the institutional faculty senate, require higher scores on the advanced
placement test than scores designated by the governing board when the credit is to be used toward
meeting a requirement of the core curriculum for a major in that department;
(u) (v) Consult, cooperate and work with the State Treasurer and the State Auditor to update
as necessary and maintain an efficient and cost-effective system for the financial management and
expenditure of
special appropriated and nonappropriated revenue
and appropriated state funds at the
institution under its jurisdiction that ensures that properly submitted requests for payment be paid
on or before
the due date but, in any event, within fifteen days of receipt in the State Auditor's office;
(v) (w) In consultation with the appropriate chancellor and the Secretary of the Department
of Administration, develop, update as necessary and maintain a plan to administer a consistent
method of conducting personnel transactions, including, but not limited to, hiring, dismissal,
promotions and transfers at the institution under its jurisdiction. Each personnel transaction shall
be accompanied by the appropriate standardized system or forms, which shall be submitted to the
respective governing board and the Department of Finance and Administration;
(w) (x) Notwithstanding any other provision of this code to the contrary, transfer funds from
any account specifically appropriated for its use to any corresponding line item in a general revenue
account at any agency or institution under its jurisdiction as long as
such the transferred funds are
used for the purposes appropriated;
(x) (y) Transfer funds from appropriated special revenue accounts for capital improvements
under its jurisdiction to special revenue accounts at agencies or institutions under its jurisdiction as long as
such the transferred funds are used for the purposes appropriated
in accordance with article
nineteen of this chapter;
(y) (z) Notwithstanding any other provision of this code to the contrary, acquire legal services
that are necessary, including representation of the governing board, its institution, employees and
officers before any court or administrative body. The counsel may be employed either on a salaried
basis or on a reasonable fee basis. In addition, the governing board may, but is not required to, call
upon the Attorney General for legal assistance and representation as provided by law; and
(z) (aa) Contract and pay for disability insurance for a class or classes of employees at a state
institution of higher education under its jurisdiction.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL
COLLEGE EDUCATION.
§18B-2B-6. Powers and duties of the council.
(a) The council is the sole agency responsible for administration of vocational-technical-
occupational education and community and technical college education in the state. The council has
jurisdiction and authority over the community and technical colleges and the statewide network of
independently accredited community and technical colleges as a whole, including community and
technical college education programs as defined in section two, article one of this chapter.
(b) The council shall propose rules pursuant to section six, article one of this chapter and
article three-a, chapter twenty-nine-a of this code to implement
the provisions of this section and
applicable provisions of article one-d of this chapter.
(1) To implement
the provisions of article one-
d of this chapter relevant to community and technical colleges, the council may propose rules jointly
with the commission or separately and may choose to address all components of the accountability system in a single rule or may propose additional rules to cover specific components.
(2) The rules pertaining to financing policy and benchmarks and indicators required by this
section shall be filed with the Legislative Oversight Commission on Education Accountability by
the first day of October, two thousand eight. Nothing in this subsection requires other rules of the
Council to be promulgated again under the procedure set forth in article three-a, chapter twenty-nine-
a of this code unless such rules are rescinded, revised, altered or amended. and
(3) The Legislature finds that an emergency exists and, therefore, the Council shall propose
an emergency rule or rules to implement the provisions of this section relating to the financing policy
and benchmarks and indicators in accordance with section six, article one of this chapter and article
three-a, chapter twenty-nine-a of this code by the first day of October, two thousand eight. The
emergency rule or rules may not be implemented without prior approval of the Legislative Oversight
Commission on Education Accountability.
(c) The council has the following powers and duties relating to the authority established in
subsection (a) of this section:
(1) Develop, oversee and advance the public policy agenda for community and technical
college education for the purpose of accomplishing the mandates of this section, including, but not
limited to, the following:
(A) Achieving the goals and objectives established in articles one and one-d of this chapter;
(B) Addressing the goals and objectives contained in the institutional compacts created
pursuant to section seven, article one-d of this chapter; and
(C) Developing and implementing the master plan described in section five, article one-d of
this chapter;
(2) Propose a legislative rule pursuant to subsection (b) of this section and article three-a,
chapter twenty-nine-a of this code to develop and implement a financing policy for community and
technical college education in West Virginia. The rule shall meet the following criteria:
(A) Provide
for an adequate level of
education educational and general funding for
institutions pursuant to section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical
resources and deferred maintenance;
(C) Establish a plan for strategic funding to strengthen capacity for support of community
and technical college education;
and
(D) Establish a plan that measures progress and provides performance-based funding to
institutions which make significant progress in the following specific areas:
(i) Achieving the objectives and priorities established in article one-d of this chapter;
(ii) Serving targeted populations, especially working age adults twenty-five years of age and
over;
(iii) Providing access to high-cost, high-demand technical programs in every region of the
state;
(iv) Increasing the percentage of functionally literate adults in every region of the state; and
(v) Providing high-quality community and technical college education services to residents
of every region of the state;
and
(E) Evaluate institutions' requests for tuition and fee increases subject to section one, article
ten of this chapter;
(3) Create a policy leadership structure relating to community and technical college education capable of the following actions:
(A) Developing, building public consensus around and sustaining attention to a long-range
public policy agenda. In developing the agenda, the council shall seek input from the Legislature
and the Governor and specifically from the State Board of Education and local school districts in
order to create the necessary linkages to assure smooth, effective and seamless movement of students
through the public education and post-secondary education systems and to ensure that the needs of
public school courses and programs can be fulfilled by the graduates produced and the programs
offered;
(B) Ensuring that the governing boards of the institutions under the council's jurisdiction
carry out their duty effectively to govern the individual institutions of higher education; and
(C) Holding each community and technical college and the statewide network of
independently accredited community and technical colleges as a whole accountable for
accomplishing their missions and achieving the goals and objectives established in articles one, one-
d and three-c of this chapter;
(4) Develop for inclusion in the statewide public agenda, a plan for raising education
attainment, increasing adult literacy, promoting workforce and economic development and ensuring
access to advanced education for the citizens of West Virginia;
(5) Provide statewide leadership, coordination, support and technical assistance to the
community and technical colleges and to provide a focal point for visible and effective advocacy for
their work and for the public policy agendas approved by the commission and council.
(6) Review and adopt annually all institutional compacts for the community and technical
colleges pursuant to
the provisions of section seven, article one-d of this chapter;
(7) Fulfill the mandates of the accountability system established in article one-d of this
chapter and report on progress in meeting established goals, objectives and priorities to the elected
leadership of the state;
(8) Propose a legislative rule pursuant to subsection (b) of this section and article three-a,
chapter twenty-nine-a of this code to establish benchmarks and indicators in accordance with
the
provisions of this subsection;
(9) Establish and implement the benchmarks and performance indicators necessary to
measure institutional progress:
(A) In meeting state goals, objectives and priorities established in articles one and one-d of
this chapter;
(B) In carrying out institutional missions; and
(C) In meeting the essential conditions established in article three-c of this chapter;
(10) Collect and analyze data relating to the performance of community and technical
colleges in every region of West Virginia and report periodically or as directed to the Legislative
Oversight Commission on Education Accountability on the progress in meeting the goals and
objectives established in articles one and one-d of this chapter.
Additionally, the council shall report annually during the January interim
meetings meeting
period on a date and at a time and location to be determined by the President of the Senate and the
Speaker of the House of Delegates.
The annual report shall address at least the following:
(A) The performance of the community and technical college network during the previous
fiscal year, including, but not limited to, progress in meeting
goals stated in the compacts and progress of the institutions and the network as a whole in meeting the goals,
and objectives
and
priorities established in articles one and one-d of this chapter
and in the council's master plan and
institution compacts;
(B) The priorities
established for capital investment needs pursuant to subdivision (11) of this
subsection of the council for new operating and capital investments and the justification for
such the
priority; and
(C) Recommendations of the council for statutory changes necessary or expedient to achieve
established state goals and objectives;
(11) In accordance with article nineteen of this chapter:
(11) (A) Establish a formal process for identifying needs for capital investments and for
determining priorities for these
investments needs for consideration by the Governor and the
Legislature as part of the appropriation request process;
(B) Ensure that the governing boards adhere to the capital construction and maintenance
provisions of article nineteen of this chapter; and
(C) Notwithstanding any other provision of this code to the contrary, sell, lease, convey or
otherwise dispose of all or part of any real property that it owns.
Notwithstanding the language in subdivision eleven, subsection a, section four, article one-b
of this chapter, the Commission is not a part of the process for identifying needs for capital
investments for the statewide network of independently accredited community and technical colleges
(12) Draw upon the expertise available within
the Governor's Workforce Investment Office
Workforce West Virginia and the West Virginia Development Office as a resource in the area of
workforce development and training;
(13) Acquire legal services that are considered necessary, including representation of the
council, its institutions, employees and officers before any court or administrative body,
notwithstanding any other provision of this code to the contrary. The counsel may be employed
either on a salaried basis or on a reasonable fee basis. In addition, the council may, but is not
required to, call upon the Attorney General for legal assistance and representation as provided by
law;
(14) Employ a chancellor for community and technical college education pursuant to section
three of this article;
(15) Employ other staff as necessary and appropriate to carry out the duties and
responsibilities of the council consistent with
the provisions of section two, article four of this
chapter;
(16) Employ other staff as necessary and appropriate to carry out the duties and
responsibilities of the council who are employed solely by the council;
(17) Provide suitable offices in Charleston for the chancellor and other staff;
(18) Approve the total compensation package from all sources for presidents of community
and technical colleges, as proposed by the governing boards. The governing boards
must shall obtain
approval from the council of the total compensation package both when presidents are employed
initially and subsequently when any change is made in the amount of the total compensation
package;
(19) Establish and implement policies and procedures to ensure that
students a student may
transfer and apply toward the requirements for a degree the maximum number of credits earned at
any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as is consistent with sound academic
policy;
(20) Establish and implement policies and programs, jointly with the community and
technical colleges, through which
students who have a student who has gained knowledge and skills
through employment, participation in education and training at vocational schools or other education
institutions, or Internet-based education programs, may demonstrate by competency-based
assessment
that they have the necessary knowledge and skills to be granted academic credit or
advanced placement standing toward the requirements of an
associate associate's degree or a
bachelor's degree at a state institution of higher education;
(21) Seek out and attend regional and national meetings and forums on education and
workforce development-related topics,
as that council members consider critical for the performance
of their duties. The council shall keep abreast of national and regional community and technical
college education trends and policies to aid members in developing the policies for this state that
meet the education goals and objectives established in articles one and one-d of this chapter;
(22) Assess community and technical colleges for the payment of expenses of the council or
for the funding of statewide services, obligations or initiatives related specifically to the provision
of community and technical college education;
(23) Promulgate rules allocating reimbursement of appropriations, if made available by the
Legislature, to community and technical colleges for qualifying noncapital expenditures incurred in
the provision of services to students with physical, learning or severe sensory disabilities;
(24) Assume the prior authority of the commission in examining and approving tuition and
fee increase proposals submitted by community and technical college governing boards as provided in section one, article ten of this chapter.
(25) Develop and submit to the commission, a single
budget appropriation request for
community and technical college education that reflects recommended appropriations for community
and technical colleges and that meets the following conditions:
(A) Incorporates the provisions of the financing rule mandated by this section to measure and
provide performance funding to institutions
which that achieve or make significant progress toward
achieving established state
goals, objectives and priorities;
(B) Considers the progress of each institution toward meeting the essential conditions set
forth in section three, article three-c of this chapter, including independent accreditation; and
(C) Considers the progress of each institution toward meeting the goals, objectives and
priorities established in article one-d of this chapter and its approved institutional compact.
(26) Administer and distribute the independently accredited community and technical college
development account;
(27) Establish a plan of strategic funding to strengthen capacity for support and assure
delivery of high quality community and technical college education in all regions of the state;
(28) Foster coordination among all state-level, regional and local entities providing post-
secondary vocational education or workforce development and coordinate all public institutions and
entities that have a community and technical college mission;
(29) Assume the principal responsibility for oversight of those community and technical
colleges seeking independent accreditation and for holding governing boards accountable for
meeting the essential conditions pursuant to article three-c of this chapter;
(30) Advise and consent in the appointment of the presidents of the community and technical colleges pursuant to section six, article one-b of this chapter. The role of the council in approving
a president is to assure through personal interview that the person selected understands and is
committed to achieving the goals and objectives established in the institutional compact and in
articles one, one-d and three-c of this chapter;
(31) Provide a single, statewide link for current and prospective employers whose needs
extend beyond one locality;
(32) Provide a mechanism capable of serving two or more institutions to facilitate joint
problem solving in areas including, but not limited to, the following:
(A) Defining faculty roles and personnel policies;
(B) Delivering high-cost technical education programs across the state;
(C) Providing one-stop service for workforce training to be delivered by multiple institutions;
and
(D) Providing opportunities for resource-sharing and collaborative ventures;
(33) Provide support and technical assistance to develop, coordinate and deliver effective and
efficient community and technical college education programs and services in all regions of the state;
(34) Assist the community and technical colleges in establishing and promoting links with
business, industry and labor in the geographic areas for which each community and technical college
is responsible;
(35) Develop alliances among the community and technical colleges for resource sharing,
joint development of courses and courseware, and sharing of expertise and staff development;
(36) Serve aggressively as an advocate for development of a seamless curriculum;
(37) Cooperate with all providers of education services in the state to remove barriers relating to a seamless system of public and higher education and to transfer and articulation between and
among community and technical colleges, state colleges and universities and public education,
preschool through grade twelve;
(38) Encourage the most efficient use of available resources;
(39) Coordinate with the commission in informing public school students, their parents and
teachers of the academic preparation that students need in order to be prepared adequately to succeed
in their selected fields of study and career plans, including presentation of academic career fairs;
(40) Jointly with the commission, approve and implement a uniform standard, as developed
by the chancellors, to determine which students shall be placed in remedial or developmental
courses. The standard shall be aligned with college admission tests and assessment tools used in
West Virginia and shall be applied uniformly by the governing boards throughout the public higher
education system. The chancellors shall develop a clear, concise explanation of the standard which
the governing boards shall communicate to the State Board of Education and the State
Superintendent of Schools;
(41) Develop and implement strategies and curriculum for providing developmental
education which shall be applied by any state institution of higher education providing
developmental education.
(42) Develop a statewide system of community and technical college programs and services
in every region of West Virginia for competency-based certification of knowledge and skills,
including a statewide competency-based associate degree program;
(43) Review and approve all institutional master plans for the community and technical
colleges pursuant to section four, article two-a of this chapter;
(44) Propose rules for promulgation pursuant to subsection (b) of this section and article
three-a, chapter twenty-nine-a of this code that are necessary or expedient for the effective and
efficient performance of community and technical colleges in the state;
(45) In its sole discretion, transfer any rule under its jurisdiction, other than a legislative rule,
to the jurisdiction of the governing boards,
who which may rescind, revise, alter or amend any rule
transferred pursuant to rules adopted by the council, and provide technical assistance to the
institutions under its jurisdiction to aid them in promulgating rules;
(46) Develop for inclusion in the higher education report card, as defined in section eight,
article one-d of this chapter, a separate section on community and technical colleges. This section
shall include, but is not limited to, evaluation of the institutions based upon the benchmarks and
indicators developed in subdivision (9) of this subsection;
(47) Facilitate continuation of the Advantage Valley Community College Network under the
leadership and direction of
Marshall Mountwest Community and Technical College;
(48) Initiate and facilitate creation of other regional networks of affiliated community and
technical colleges that the council finds to be appropriate and in the best interests of the citizens to
be served;
(49) Develop with the State Board of Education plans for secondary and post-secondary
vocational-technical-occupational and adult basic education, including, but not limited to, the
following:
(A) Policies to strengthen vocational-technical-occupational and adult basic education; and
(B) Programs and methods to assist in the improvement, modernization and expanded
delivery of vocational-technical-occupational and adult basic education programs;
(50) Distribute federal vocational education funding provided under the Carl D. Perkins
Vocational and Technical Education Act of 1998, PL 105-332, with an emphasis on distributing
financial assistance among secondary and post-secondary vocational- technical-occupational and
adult basic education programs to help meet the public policy agenda.
In distributing funds the council shall use the following guidelines:
(A) The State Board of Education shall continue to be the fiscal agent for federal vocational
education funding;
(B) The percentage split between the State Board of Education and the council shall be
determined by rule promulgated by the council under
the provisions of article three-a, chapter
twenty-nine-a of this code;
The Council shall first obtain the approval of the State Board of
Education before proposing a rule
(51) Collaborate, cooperate and interact with all secondary and post-secondary vocational-
technical-occupational and adult basic education programs in the state, including the programs
assisted under the federal Carl D. Perkins Vocational and Technical Education Act of 1998, PL 105-
332, and the Workforce Investment Act of 1998, to promote the development of seamless curriculum
and the elimination of duplicative programs;
(52) Coordinate the delivery of vocational-technical occupational and adult basic education
in a manner designed to make the most effective use of available public funds to increase
accessibility for students;
(53) Analyze and report to the State Board of Education on the distribution of spending for
vocational-technical-occupational and adult basic education in the state and on the availability of
vocational-technical-occupational and adult basic education activities and services within the state;
(54) Promote the delivery of vocational-technical-occupational education, adult basic
education and community and technical college education programs in the state
which that
emphasize the involvement of business, industry and labor organizations;
(55) Promote public participation in the provision of vocational-technical-occupational
education, adult basic education and community and technical education at the local level,
emphasizing programs which involve the participation of local employers and labor organizations;
(56) Promote equal access to quality vocational-technical- occupational education, adult basic
education and community and technical college education programs to handicapped and
disadvantaged individuals, adults in need of training and retraining, single parents, homemakers,
participants in programs designed to eliminate sexual bias and stereotyping and criminal offenders
serving in correctional institutions;
(57) Meet annually between the months of October and December with the Advisory
Committee of Community and Technical College Presidents created pursuant to section eight of this
article to discuss those matters relating to community and technical college education in which
advisory committee members or the council may have an interest;
(58) Accept and expend any gift, grant, contribution, bequest, endowment or other money
for the purposes of this article;
(59) Assume the powers set out in section nine of this article. The rules previously
promulgated by the state College System Board of Directors pursuant to that section and transferred
to the commission are hereby transferred to the council and shall continue in effect until rescinded,
revised, altered or amended by the council;
(60) Pursuant to
the provisions of subsection (b) of this section and article three-a, chapter twenty-nine-a of this code, promulgate a uniform joint legislative rule with the commission for the
purpose of standardizing, as much as possible, the administration of personnel matters among the
institutions of higher education;
(61) Determine when a joint rule among the governing boards of the community and
technical colleges is necessary or required by law and, in those instances and in consultation with
the governing boards, promulgate the joint rule;
(62)
Subject to section one, article ten of this chapter, promulgate a
joint rule
with the
Commission establishing tuition and fee policy for all
institutions of higher education governing
boards under its jurisdiction. The rule shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Any other policies the
Commission and council
consider considers appropriate;
(63) In cooperation with the West Virginia Division of Highways, study a method for
increasing the signage signifying community and technical college locations along the state interstate
highways, and report to the Legislative Oversight Commission on Education Accountability
regarding any recommendations and required costs; and
(64)
Promulgate and implement a
policy rule jointly with the commission whereby any
course credit earned at a community and technical college transfers for program credit at any other
state institution of higher education and is not limited to fulfilling a general education requirement.
(d) In addition to the powers and duties listed in subsections (a), (b) and (c) of this section, the council has the following general powers and duties related to its role in developing, articulating
and overseeing the implementation of the public policy agenda for community and technical
colleges:
(1) Planning and policy leadership including a distinct and visible role in setting the state's
policy agenda for the delivery of community and technical college education and in serving as an
agent of change;
(2) Policy analysis and research focused on issues affecting the community and technical
college network as a whole or a geographical region
thereof of the network;
(3) Development and implementation of each community and technical college mission
definition including use of incentive and performance funds to influence institutional behavior in
ways that are consistent with achieving established state goals, objectives and priorities;
(4) Academic program review and approval for the institutions under its jurisdiction,
including the use of institutional missions as a template to judge the appropriateness of both new and
existing programs and the authority to implement needed changes;
(5) Development of budget and allocation of resources for institutions delivering community
and technical college education, including reviewing and approving institutional operating and
capital budgets and distributing incentive and performance-based funding;
(6) Acting as the agent to receive and disburse public funds related to community and
technical college education when a governmental entity requires designation of a statewide higher
education agency for this purpose;
(7) Development, establishment and implementation of information, assessment and internal
accountability systems, including maintenance of statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators for community
and technical colleges;
(8) Jointly with the commission, development, establishment and implementation of policies
for licensing and oversight of both public and private degree-granting and nondegree-granting
institutions that provide post-secondary education courses or programs;
(9) Development, implementation and oversight of statewide and
regionwide regional
projects and initiatives related specifically to providing community and technical college education
such as those using funds from federal categorical programs or those using incentive and
performance-based funding from any source; and
(10) Quality assurance that intersects with all other duties of the council particularly in the
areas of planning, policy analysis, program review and approval, budgeting and information and
accountability systems.
(e) The council may withdraw specific powers of a governing board under its jurisdiction for
a period not to exceed two years if the council makes a determination that any of the following
conditions exist:
(1) The governing board has failed for two consecutive years to develop an institutional
compact as required in section seven, article one-d of this chapter;
(2) The council has received information, substantiated by independent audit, of significant
mismanagement or failure to carry out the powers and duties of the board of governors according
to state law; or
(3) Other circumstances which, in the view of the council, severely limit the capacity of the
board of governors to carry out its duties and responsibilities.
The period of withdrawal of specific powers may not exceed two years during which time
the council
is authorized to may take steps necessary to reestablish the conditions for restoration of
sound, stable and responsible institutional governance.
(f) In addition to the powers and duties provided
for in subsections (a), (b), (c) and (d) of this
section and any others assigned to it by law, the council has those powers and duties necessary or
expedient to accomplish the purposes of this article.
and
(g) When the council and commission, each, is required to consent, cooperate, collaborate
or provide input into the actions of the other the following conditions apply:
(1) The body acting first shall convey its decision in the matter to the other body with a
request for concurrence in the action;
(2) The commission or the council, as the receiving body, shall place the proposal on its
agenda and shall take final action within sixty days of the date when the request for concurrence is
received; and
(3) If the receiving body fails to take final action within sixty days, the original proposal
stands and is binding on both the commission and the council.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-6.
Regulation of parking, speed flow of traffic on campus roads and driveways; civil
and criminal penalties; disposition of revenue.
(a) The governing boards are hereby authorized to construct, maintain and operate automobile
parking facilities or areas upon any premises owned or leased at any state institution of higher
education under their jurisdiction for use by students, faculty, staff and visitors. The governing
boards may charge fees for use of the parking facilities or areas under their control. All moneys collected for the use of the parking facilities or areas shall be paid to the credit of the state institution
of higher education at which the fees were charged into a special fund in the State Treasury. The
moneys in the fund are used first to pay the cost of maintaining and operating the parking facilities
or areas.
Any excess not needed for this purpose may be used for the acquisition of property by lease
or purchase and the construction thereon of additional parking facilities or areas. Any money in the
fund not needed immediately for the acquisition, construction, maintenance or operation of the
parking facilities or areas may be temporarily invested by the governing boards with the West
Virginia Investment Management Board to the credit of the institution by which the fees were
charged.
(b) (a) Notwithstanding any other motor vehicle or traffic law or regulation to the contrary,
a governing board may regulate and control at any state institution under its jurisdiction the speed,
flow and parking of vehicles on campus roads, driveways and parking facilities or areas.
(1) Rules for this purpose shall be promulgated by the governing boards in the manner
prescribed in section six, article one of this chapter; and
(2) When so promulgated, the rules have the force and effect of law.
(3) The governing board shall post in a conspicuous location in each parking facility or area,
a summary of the rules governing the use of the facility or area including, but not limited to, the
availability of temporary parking permits and where these permits may be obtained and the penalties
which may be imposed for violations of the rules.
(4) The governing board shall post in a conspicuous location along each campus road and
driveway notice signs pertaining to the speed of vehicles, spaces available for parking, directional flow of traffic and penalties which may be imposed for violations of the rules.
(c) (b) Any person parking or operating a vehicle in violation of the rules shall be issued a
citation:
(1) Describing the offense charged;
and
(2) Ordering an appearance:
(A) Within ten days, excluding Saturdays, Sundays and holidays observed by the state
institution, before a designated official of the institution;
(B) Before a magistrate located in the county if the person cited fails to appear within the ten
days; or
(C) Before the judge of the municipal court, if the state institution is located within a
municipality having such an official and the person cited fails to appear within the ten days.
(d) (c) The designated official of the state institution has exclusive jurisdiction of the offense
during the ten-day period until the
citations are citation is forwarded to a magistrate. For the state
institutions of higher education under the jurisdiction of the governing board of Marshall University
and for the state institution of higher education known as West Virginia University only, the
designated official of the institution has exclusive jurisdiction of the offense for thirty days following
the violation. After thirty days the official
forwards shall forward the citation to a magistrate. Any
person
so cited may plead no contest to the offense and, by so pleading, is subject to a civil penalty
to be determined uniformly by the designated official and commensurate with the severity of the
offense. For the state institutions under the jurisdiction of the governing board of Marshall
University and for the state institution of higher education known as West Virginia University only,
the amount imposed may not exceed $20. For all other institutions the amount may not exceed $10, for each offense as partial reimbursement to the state institution of higher education for the cost of
regulating traffic and parking. In the case of the state institutions under the jurisdiction of the
governing board of Marshall University and in the case of the state institution of higher education
known as West Virginia University only, the designated official shall determine the penalty
uniformly, commensurate with the severity of the offense, and may apply academic restrictions in
lieu of requiring a student to appear in court and receive penalties otherwise provided in this section.
Moneys derived from civil penalties imposed
herein in this subsection shall be deposited in the
special fund in the State Treasury created by this section and credited to the state institution to which
the penalty was paid institution's auxiliary and auxiliary capital fees fund.
(e) (d) Upon expiration of the ten-day or thirty-day period, as applicable, or upon a pleading
of not guilty before the designated official of the state institution within the applicable period, the
magistrate or judge of the municipal court has jurisdiction of the offense. Any person cited under
the provisions of this section, upon a finding of guilty by the magistrate or municipal judge, is
subject to a fine for each offense by the state institutions under the jurisdiction of the governing
board of Marshall University and for the state institution of higher education known as West Virginia
University only, of up to $40, and at all other state institutions not less than $10 nor more than $20,
the amount to be commensurate with the severity of the offense.
(f) (e) Each designated official of a state institution presiding over a case under
the provisions
of this section shall keep a record of every citation which alleges a violation of
such the provisions,
or the rules promulgated in accordance
therewith with this section, and shall keep a record of every
official action in reference
thereto to the citation including, but not limited to, a record of every plea
of no contest, conviction or acquittal, of the offense charged, and the amount of the fine or civil penalty resulting from each citation.
(g) (f) Whenever a vehicle is parked on any state institution campus road, driveway or
parking facility or area in a manner which violates posted rules and substantially impedes the flow
of traffic or endangers the health and safety,
in addition to issuing a citation and any procedures set
forth in this section, the institution may
in addition to the issuing of a citation and subsequent
procedures set forth herein, remove the vehicle, by towing or otherwise, to an area owned by the
institution or areas designated for this purpose. The vehicle, having been towed to the designated
area or areas, may be rendered immovable by use of locking wheel blocks or other device not
damaging to the vehicle. The state institution of higher education shall maintain any vehicle
so
towed in the same condition as it was immediately prior to being towed, but
shall is not
be liable for
any damage to a vehicle towed to, or kept in, a designated area pursuant to
the provisions of this
section. The state institution of higher education shall pay for the cost of removing the vehicle and
shall have has a right to reimbursement from the owner for this cost and for the reasonable cost of
keeping the vehicle in the designated area. Until payment of these costs, the state institution of
higher education may retain possession of the vehicle and the institution shall have a lien on the
vehicle for the amount due. The state institution of higher education may enforce this lien in the
manner provided in section fourteen, article eleven, chapter thirty-eight of this code for the
enforcement of other liens. For the state institutions of higher education under the jurisdiction of
the governing board of Marshall University and for the state institution of higher education known
as West Virginia University only,
the provisions of this subsection also apply when a vehicle is
subject to three or more unpaid citations.
(h) (g) If, at any time,
Marshall Mountwest Community and Technical College ceases to share a physical campus location with Marshall University, it may not be included as an institution
under the jurisdiction of the governing board of Marshall University for the purposes of subsections
(a),(d),(e) and (g) (c), (d) and (f) of this section.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.
(a) The council, commission and each governing board
through the Vice Chancellor for
Administration shall purchase or acquire all materials, supplies, equipment, services and printing
required for that governing board or the council or commission, as appropriate, and the state
institutions of higher education under their jurisdiction, except the governing boards of Marshall
University and West Virginia University, respectively, are subject to
the provisions of subsection (d)
of this section.
(b) The commission and council jointly shall adopt rules governing and controlling
acquisitions and purchases in accordance with
the provisions of this section. The rules shall
assure
that the Council, Commission and governing boards ensure that the following procedures are
followed:
(1)
Do not preclude any No person
is precluded from participating and making sales thereof
to the
council, commission or governing board
or to the Council or Commission except as otherwise
provided in section five of this article.
Provision of consultant Providing consulting services such
as strategic planning services does not preclude or inhibit the governing boards, council or
commission from considering
any a qualified bid or response for delivery of a product or a
commodity
because the consultant services are rendered from the individual providing the services;
(2)
Establish and prescribe Specifications
in all proper cases are established and prescribed for materials, supplies, equipment, services and printing to be purchased;
(3)
Adopt and prescribe such Purchase order, requisition or other forms as may be required
are adopted and prescribed;
(4)
Negotiate for and make Purchases and acquisitions in such quantities, at such times and
under contract,
are negotiated for and made in the open market or through other accepted methods
of governmental purchasing as may be practicable in accordance with general law;
(5)
Advertise for Bids
are advertised on all purchases exceeding $25,000,
to purchase and
made by means of sealed
or electronically-submitted bids and competitive bidding or
to effect
advantageous purchases
effected through other accepted governmental methods and practices.
Competitive bids are not required for purchases of $25,000 or less.
(6)
Post Notices
of all for acquisitions and purchases for which competitive bids are being
solicited
are posted in the purchasing office of the specified institution involved in the purchase, at
least two weeks prior to making
such the purchases.
and The rules shall ensure that the notice is
available to the public during business hours;
(7)
Provide for purchasing Purchases are made in the open market;
(8)
Provide for vendor notification Vendors are notified of bid solicitation and emergency
purchasing;
and
(9) Provide that competitive bids are not required for purchases of $25,000 or less; and
(10) Provide for not (9) No fewer than three bids
where are obtained when bidding is
required,
except if fewer than three bids are submitted, an award may be made from among those
received.
(c) When a state institution of higher education submits a contract, agreement or other document to the Attorney General for approval as to form as required by this chapter the following
conditions apply:
(1) 'Form' means compliance with the Constitution and statutes of the State of West
Virginia;
(2) The Attorney General does not have the authority to reject a contract, agreement or other
document based on the substantive provisions
therein in the contract, agreement or document or any
extrinsic matter
so as long as it complies with the Constitution and statutes of this state;
(3) Within fifteen days of receipt, the Attorney General shall notify the appropriate state
institution of higher education in writing that the contract, agreement or other document is approved
or disapproved as to form. If the contract, agreement or other document is disapproved as to form,
the notice of disapproval shall identify each defect that supports the disapproval
; and
(4) If the state institution elects to challenge the disapproval by filing a writ of mandamus or
other action and prevails, then the Attorney General shall pay reasonable attorney fees and costs
incurred.
(d) Pursuant to this subsection, the governing boards of Marshall University and West
Virginia University, respectively, may
carry out the following actions:
(1) Purchase or acquire all materials, supplies, equipment, services and printing required for
the governing board without approval from the commission or the Vice Chancellor for
Administration and may issue checks in advance to cover postage as provided in subsection (f) of
this section;
(2) Make purchases from cooperative buying groups, consortia, the federal government or
from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from these groups and if this would be the most financially advantageous
manner of making the purchase;
(3) Select and acquire by contract or lease all grounds, buildings, office space or other space,
and capital improvements, including equipment,
if the rental
of which is necessarily required by the
governing board; and
(4) Use purchase cards under terms approved for the commission, the council and governing
boards of state institutions of higher education and participate in any expanded program of use as
provided in subsection
(w) (u) of this section.
(e) The governing boards shall adopt sufficient accounting and auditing procedures and
promulgate and adopt appropriate rules subject to
the provisions of section six, article one of this
chapter to govern and control acquisitions, purchases, leases and other instruments for grounds,
buildings, office or other space, and capital improvements, including equipment, or lease-purchase
agreements.
(f) The council, commission or each governing board
through the Vice Chancellor for
Administration may issue a check in advance to a company supplying postage meters for postage
used by that board, the council or commission and by the state institutions of higher education under
their jurisdiction.
(g) When a purchase is to be made by bid, any or all bids may be rejected. However, all
purchases based on advertised bid requests shall be awarded to the lowest responsible bidder taking
into consideration the qualities of the articles to be supplied, their conformity with specifications,
their suitability to the requirements of the governing boards, council or commission and delivery
terms. The preference for resident vendors as provided in section thirty-seven, article three, chapter five-a of this code
apply applies to the competitive bids made pursuant to this section.
(h) The governing boards, council and commission shall maintain a purchase file, which shall
be a public record and open for public inspection.
(1) After the award of the order or contract, the governing boards, council and commission
shall indicate upon the successful bid
the following information:
(A) That it was Designation as the successful bid;
and shall further indicate
(B) Why The reason any bids
are were rejected; and
(C) The reason for rejection, if the mathematical low vendor
is was not awarded the order
or contract.
the reason therefor
(2) A record in the purchase file may not be destroyed without the written consent of the
Legislative Auditor. Those files in which the original documentation has been held for at least one
year and in which the original documents have been reproduced and archived on microfilm or other
equivalent method of duplication may be destroyed without the written consent of the Legislative
Auditor.
(3) All files, no matter the storage method, shall be open for inspection by the Legislative
Auditor upon request.
(i) The commission and council, also jointly, shall
adopt promulgate rules to prescribe
qualifications to be met by any person who is to be employed as a buyer pursuant to this section.
These rules shall require that a person may not be employed as a buyer unless that person, at the time
of employment
either is has one of the following qualifications:
(1)
Is a graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any unit of government or for any business, commercial or industrial enterprise.
(j) Any person making purchases and acquisitions pursuant to this section shall execute a
bond in the penalty of $50,000, payable to the State of West Virginia, with a corporate bonding or
surety company authorized to do business in this state as surety thereon, in form prescribed by the
Attorney General and conditioned upon the faithful performance of all duties in accordance with this
section and sections five through eight, inclusive, of this article and the rules of the governing board
and the council and commission. In lieu of separate bonds for
such these buyers, a blanket surety
bond may be obtained.
Any such The bond shall be filed with the Secretary of State
and the cost of
any such the bond shall be paid from funds appropriated to the applicable governing board or the
council or commission.
(k) All purchases and acquisitions shall be made in consideration and within limits of
available appropriations and funds and in accordance with applicable provisions of article two,
chapter five-a of this code relating to expenditure schedules and quarterly allotments of funds.
Notwithstanding any other provision of this code to the contrary, only those purchases exceeding the
dollar amount for competitive sealed bids in this section are required to be encumbered and they may
be entered into the state's centralized accounting system by the staff of the commission, council or
governing boards to satisfy the requirements of article two, chapter five-a of this code
and
specifically sections twenty-six, twenty-seven and twenty-eight of said article to determine whether
the amount of the purchase is within the
Commission's, Council's or governing board's quarterly
allotment
of the commission, council or governing board, is in accordance with the approved
expenditure schedule and otherwise conforms to
the provisions of said the article.
(l) The governing boards, council and commission may make requisitions upon
the State Auditor for a sum to be known as an advance allowance account, not to exceed five percent of the
total of the appropriations for the governing board, council or commission, and
the State Auditor
shall draw a warrant upon the Treasurer for
such those accounts. All advance allowance accounts
shall be accounted for by the applicable governing board or the council or commission once every
thirty days or more often if required by the State Auditor.
(m) Contracts entered into pursuant to this section shall be signed by the applicable governing
board or the council or commission in the name of the state and shall be approved as to form by the
Attorney General. A contract which requires approval as to form by the Attorney General is
considered approved if the Attorney General has not responded within fifteen days of presentation
of the contract. A contract or a change order for that contract and notwithstanding any other
provision of this code to the contrary, associated documents such as performance and labor/material
payments, bonds and certificates of insurance which use terms and conditions or standardized forms
previously approved by the Attorney General and do not make substantive changes in the terms and
conditions of the contract do not require approval as to form by the Attorney General. The Attorney
General shall make a list of those changes which he or she considers to be substantive and the list,
and any changes
thereto to the list, shall be published in the State Register. A contract that exceeds
the dollar amount requiring competitive sealed bids in this section shall be filed with the State
Auditor. If requested to do so, the governing boards, council or commission shall make all contracts
available for inspection by the State Auditor. The governing board, council or commission, as
appropriate, shall prescribe the amount of deposit or bond to be submitted with a bid or contract, if
any, and the amount of deposit or bond to be given for the faithful performance of a contract.
(n) If the governing board, council or commission purchases or contracts for materials, supplies, equipment, services and printing contrary to
the provisions of sections four through seven
of this article or the rules pursuant
thereto, such to this article, the purchase or contract is void and
of no effect.
(o)
Any A governing board or the council or commission, as appropriate, may request the
director of
purchases purchasing to make available
from time to time the facilities and services of
that department to the governing boards, council or commission in the purchase and acquisition of
materials, supplies, equipment, services and printing.
and The director of
purchases purchasing shall
cooperate with that governing board, council or commission, as appropriate, in all such purchases
and acquisitions upon
such that request.
(p) Each governing board or the council or commission, as appropriate,
shall may permit
private institutions of higher education to join as purchasers on purchase contracts for materials,
supplies, services and equipment entered into by that governing board or the council or commission.
Any A private
school institution desiring to join as
purchasers purchaser on
such purchase contracts
shall file with that governing board or the council or commission,
as appropriate, an affidavit signed
by the president
or designee of the
private institution
of higher education or a designee requesting
that it be authorized to join as purchaser on purchase contracts of that governing board or the council
or commission, as appropriate. The private
school institution shall agree that it is bound by such
terms and conditions as that governing board or the council or commission may prescribe and that
it will be responsible for payment directly to the vendor under each purchase contract.
(q) Notwithstanding any other provision of this code to the contrary, the governing boards,
council and commission, as appropriate, may make purchases from cooperative buying groups,
consortia, the federal government or from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from
cooperative buying groups,
consortia, the federal government or from a federal contract that source, and purchasing from
the
cooperative buying groups, consortia, federal government or from a federal government contract that
source would be the most financially advantageous manner of making the purchase.
(r) An independent performance audit of all purchasing functions and duties which are
performed at any state institution of higher education, except Marshall University and West Virginia
University, shall be performed each fiscal year. The Joint Committee on Government and Finance
shall conduct the performance audit and the governing boards, council and commission, as
appropriate, are responsible for paying the cost of the audit from funds appropriated to the governing
boards, council or commission.
(1) The governing boards of Marshall University and West Virginia University, respectively,
shall provide for independent performance audits of all purchasing functions and duties on their
campuses at least once in each three-year period.
(2) Each audit shall be inclusive of the entire time period that has elapsed since the date of
the preceding audit.
(3) Copies of all appropriate documents relating to any audit performed by the governing
boards of Marshall University and West Virginia University shall be furnished to the Joint
Committee on Government and Finance and the Legislative Oversight Commission on Education
Accountability within thirty days of the date the audit report is completed.
(s) The governing boards shall require each institution under their respective jurisdictions to
notify and inform every vendor doing business with that institution of
the provisions of section fifty-
four, article three, chapter five-a of this code, also known as the Prompt Pay Act of 1990.
(t) Consultant services, such as strategic planning services, do not preclude or inhibit the
governing boards, council or commission from considering any qualified bid or response for delivery
of a product or a commodity because of the rendering of those consultant services.
(u) The Commission or Council may enter into lease-purchase agreements for capital
improvements, including equipment, on behalf of or for the benefit of state institutions of higher
education, the Commission or Council. After the Commission or Council, as appropriate, has
granted approval for lease-purchase agreements by the governing boards, a governing board may
enter into lease-purchase agreements for capital improvements, including equipment, except the
governing boards of Marshall University and West Virginia University may enter into lease-purchase
agreements for the state institutions of higher education known as Marshall University and West
Virginia University without seeking the approval of the Commission or the Council. Any lease-
purchase agreement so entered shall constitute a special obligation of the State of West Virginia.
The obligation under a lease-purchase agreement so entered may be from any funds legally available
to the Commission, Council or the institution and must be cancelable at the option of the
Commission, Council or the governing board or institution at the end of any fiscal year. The
obligation, any assignment or securitization thereof, never constitutes an indebtedness of the State
of West Virginia or any department, agency or political subdivision thereof, within the meaning of
any Constitutional provision or statutory limitation, and may not be a charge against the general
credit or taxing powers of the state or any political subdivision thereof. Such facts shall be plainly
stated in any lease-purchase agreement. Further, the lease-purchase agreement shall prohibit
assignment or securitization without consent of the lessee and the approval of the agreement as to
form by the Attorney General. of West Virginia Proposals for any agreement shall be requested in accordance with the requirements of this section and any rules or guidelines of the Commission and
Council. In addition, any lease-purchase agreement which exceeds one hundred thousand dollars
total shall be approved as to form by the Attorney General. The interest component of any lease-
purchase obligation is exempt from all taxation of the State of West Virginia, except inheritance,
estate and transfer taxes. It is the intent of the Legislature that if the requirements set forth in the
Internal Revenue Code of 1986, as amended, and any regulations promulgated pursuant thereto are
met, the interest component of any lease-purchase obligation also is exempt from the gross income
of the recipient for purposes of federal income taxation and may be designated by the governing
board or the president of the institution as a bank-qualified obligation.
(v) Notwithstanding any other provision of this code to the contrary, the Commission,
Council and governing boards have the authority, in the name of the state, to lease, or offer to lease,
as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as
provided below:
(1) The Commission, Council and governing boards have sole authority to select and to
acquire by contract or lease all grounds, buildings, office space or other space, the rental of which
is necessarily required by the Commission, Council or governing boards for the institutions under
their jurisdiction. For state institutions of higher education other than Marshall University and West
Virginia University, the chief executive officer of the Commission, Council or an institution shall
certify the following:
(A) That the grounds, buildings, office space or other space requested is necessarily required
for the proper function of the Commission, Council or institution;
(B) That the Commission, Council or institution will be responsible for all rent and other necessary payments in connection with the contract or lease; and
(C) That satisfactory grounds, buildings, office space or other space is not available on
grounds and in buildings currently owned or leased by the Commission, Council or the institution.
Before executing any rental contract or lease, the Commission, Council or a governing board shall
determine the fair rental value for the rental of the requested grounds, buildings, office space or other
space, in the condition in which they exist, and shall contract for or lease the premises at a price not
to exceed the fair rental value.
(2) The Commission, Council and governing boards are authorized to enter into long-term
agreements for buildings, land and space for periods longer than one fiscal year but not to exceed
forty years. Any purchase of real estate, any lease-purchase agreement and any construction of new
buildings or other acquisition of buildings, office space or grounds resulting therefrom, pursuant to
the provisions of this subsection shall be presented by the Commission or Council, as appropriate,
to the Joint Committee on Government and Finance for prior review. Any such lease shall contain,
in substance, all the following provisions:
(A) That the Commission, Council or governing board, as lessee, has the right to cancel the
lease without further obligation on the part of the lessee upon giving thirty days' written notice to the
lessor at least thirty days prior to the last day of the succeeding month;
(B) That the lease is considered canceled without further obligation on the part of the lessee
if the Legislature or the federal government fails to appropriate sufficient funds therefor or otherwise
acts to impair the lease or cause it to be canceled; and
(C) That the lease is considered renewed for each ensuing fiscal year during the term of the
lease unless it is canceled by the Commission, Council or governing board before the end of the then-current fiscal year.
(3) The Commission, Council or institution which is granted any grounds, buildings, office
space or other space leased in accordance with this section may not order or make permanent
changes of any type thereto, unless the Commission, Council or governing board, as appropriate, has
first determined that the change is necessary for the proper, efficient and economically sound
operation of the institution. For purposes of this section, a 'permanent change' means any addition,
alteration, improvement, remodeling, repair or other change involving the expenditure of state funds
for the installation of any tangible thing which cannot be economically removed from the grounds,
buildings, office space or other space when vacated by the institution.
(4) Leases and other instruments for grounds, buildings, office or other space, once approved
by the Commission, Council or governing board, may be signed by the chief executive officer of the
Commission, Council or institution. Any lease or instrument exceeding one hundred thousand
dollars annually shall be approved as to form by the Attorney General. A lease or other instrument
for grounds, buildings, office or other space that contains a term, including any options, of more than
six months for its fulfillment shall be filed with the State Auditor.
(5) The Commission and Council jointly may promulgate rules they consider necessary to
carry out the provisions of this section. The governing boards of Marshall University and West
Virginia University shall promulgate rules pursuant to section six, article one of this chapter to
implement the provisions of this section.
(w) (u) Purchasing card use may be expanded by the council, commission and state
institutions of higher education pursuant to
the provisions of this subsection.
(1) The council and commission jointly shall establish procedures to be implemented by the council, commission and any institution under their respective jurisdictions using purchasing cards.
The procedures shall ensure that each
maintains meets the following conditions:
(A) Appropriate use of the purchasing card system;
(B) Full compliance with
the provisions of article three, chapter twelve of this code relating
to the purchasing card program; and
(C) Sufficient accounting and auditing procedures for all purchasing card transactions.
(2) By the first day of November, two thousand four, the Council and Commission jointly
shall present the procedures to the Legislative Oversight Commission on Education Accountability
for its adoption.
(3) (2) Notwithstanding any other provision of this code to the contrary,
if the Legislative
Oversight Commission on Education Accountability adopts the procedures the council, commission
and any institution authorized pursuant to subdivision
(4) (3) of this subsection may use purchasing
cards for
the following purposes:
(A)
Payment of travel expenses directly related to the job duties of the traveling employee,
including,
but not limited to, fuel and food; and
(B)
Payment of any routine, regularly scheduled payment, including, but not limited to, utility
payments and real property rental fees.
The Council, Commission and each institution, annually by
June 30, shall provide to the state Purchasing Division a list of all goods or services for which
payment was made pursuant to this provision during that fiscal year.
(4) (3) The commission and council each shall evaluate the capacity of each institution under
its jurisdiction for complying with the procedures established pursuant to subdivision
(3) (2) of this
subsection. The commission and council each shall authorize expanded use of purchasing cards pursuant to
said that subdivision for any
such institution it determines has the capacity to comply.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF
HIGHER EDUCATION.
§18B-10-8.
Collection; disposition and use of capital and auxiliary capital fees; creation of
special capital and auxiliary capital improvements funds; revenue bonds.
(a) This section and any rules adopted by the commission, council or both, in accordance with
this section and article three-a, chapter twenty-nine-a of this code, govern
s the collection, disposition
and use of the capital and auxiliary capital fees authorized by section one of this article. The
statutory provisions governing collection and disposition of capital funds in place prior to the
enactment of this section remain in effect.
(b)
Fees for full-time students. -- The governing boards shall fix capital and auxiliary capital
fees for full-time students at each state institution of higher education per semester. For institutions
under its jurisdiction, a governing board may fix the fees at higher rates for students who are not
residents of this state.
(c)
Fees for part-time students. -- For all part-time students and for all summer school
students, the governing boards shall impose and collect the fees in proportion to, but not exceeding,
the fees paid by full-time students. Refunds of the fees may be made in the same manner as any
other fee collected at state institutions of higher education.
(d) There is continued in the State Treasury a special capital improvements fund and special
auxiliary capital improvements fund for each state institution of higher education and the
commission into which shall be paid all proceeds, respectively, of
the following:
(1) The capital and auxiliary capital fees collected from students at all state institutions of higher education pursuant to this section; and
(2) The fees collected from the students pursuant to section one of this article. The fees shall
be expended by the commission and governing boards for the payment of the principal of or interest
on any revenue bonds issued by the board of regents or the succeeding governing boards for which
the fees were pledged prior to the enactment of this section.
(e) The governing boards may make expenditures from any of the special capital
improvements funds or special auxiliary capital improvement funds established in this section to
finance
or fund on a cash basis, in whole or in part,
together in combination with any federal, state
or other grants or contributions, for any one or more of the following projects:
(1) The acquisition of land or any rights or interest in land;
(2) The construction or acquisition of new buildings;
(3) The renovation or construction of additions to existing buildings;
(4) The acquisition of furnishings and equipment for the buildings; and
(5) The construction or acquisition of any other capital improvements or capital education
facilities at the state institutions of higher education, including any roads, utilities or other properties,
real or personal, or for other purposes necessary, appurtenant or incidental to the construction,
acquisition, financing and placing in operation of the buildings, capital improvements or capital
education facilities, including student unions, dormitories, housing facilities, food service facilities,
motor vehicle parking facilities and athletic facilities.
(f)
The governing boards, in their discretion, may use the moneys in the special capital
improvements funds and special auxiliary improvement funds to finance the costs of the purposes
set forth in this section on a cash basis. The commission, when singly or jointly requested by the
council or governing boards, periodically may issue revenue bonds of the state as provided in this
section to finance all or part of the purposes and pledge all or any part of the moneys in
such the
special funds for the payment of the principal of and interest on the revenue bonds, and for reserves
for the revenue bonds. Any pledge of the special funds for the revenue bonds shall be a prior and
superior charge on the special funds over the use of any of the moneys in the funds to pay for the cost
of any of the purposes on a cash basis. Any expenditures from the special funds, other than for the
retirement of revenue bonds, may be made by the commission or governing boards only to meet the
cost of a predetermined capital improvements program for one or more of the state institutions of
higher education, in the order of priority agreed upon by the governing board or boards and the
commission and for which the aggregate revenue collections projected are presented to the Governor
for inclusion in the annual budget bill, and are approved by the Legislature for expenditure.
Any
expenditure made pursuant to subsection (e) of this section shall be part of the ten-year campus
development plan approved by the governing board pursuant to section three, article nineteen of this
chapter.
(g) The revenue bonds periodically may be authorized and issued by the commission or
governing boards to finance, in whole or in part, the purposes provided in this section in an aggregate
principal amount not exceeding the amount which the commission determines can be paid as to both
principal and interest and reasonable margins for a reserve therefor from the moneys in the special
funds.
(h) The issuance of the revenue bonds shall be authorized by a resolution adopted by the
governing board receiving the proceeds and the commission
, and the revenue bonds shall bear the
date or dates; mature at such time or times not exceeding forty years from their respective dates; be in such form either coupon or registered, with such exchangeability and interchangeability privileges;
be payable in such medium of payment and at such place or places, within or without the state; be
subject to such terms of prior redemption at such prices not exceeding one hundred five per centum
of the principal amount thereof; and
shall have the other terms and provisions determined by the
governing board receiving the proceeds and
by the commission. The revenue bonds shall be signed
by the Governor and by the chancellor of the commission or the chair of the governing boards
authorizing the issuance
thereof of the revenue bonds, under the Great Seal of the State, attested by
the Secretary of State, and the coupons attached to the revenue bonds shall bear the facsimile
signature of the chancellor of the commission or the chair of the appropriate governing boards. The
revenue bonds shall be sold in the manner the commission or governing board determines is
for in
the best interests of the state.
(i) The commission or governing boards may enter into trust agreements with banks or trust
companies, within or without the state, and in the trust agreements or the resolutions authorizing the
issuance of the bonds may enter into valid and legally binding covenants with the holders of the
revenue bonds as to the custody, safeguarding and disposition of the proceeds of the revenue bonds,
the moneys in the special funds, sinking funds, reserve funds or any other moneys or funds; as to the
rank and priority, if any, of different issues of revenue bonds by the commission or governing boards
under
the provisions of this section; as to the maintenance or revision of the amounts of the fees; as
to the extent to which swap agreements, as defined in subsection (h), section two, article two-g,
chapter thirteen of this code shall be used in connection with the revenue bonds, including such
provisions as payment, term, security, default and remedy provisions as the commission
shall
consider considers necessary or desirable, if any, under which the fees may be reduced; and as to any other matters or provisions which are considered necessary and advisable by the commission or
governing boards in the best interests of the state and to enhance the marketability of the revenue
bonds.
(j) After the issuance of any revenue bonds, the fees at the state institutions of higher
education pledged to the payment
thereof of the revenue bonds may not be reduced as long as any
of the revenue bonds are outstanding and unpaid except under
such the terms, provisions and
conditions
as shall be contained in the resolution, trust agreement or other proceedings under which
the revenue bonds were issued. The revenue bonds are and constitute negotiable instruments under
the Uniform Commercial Code of this state; together with the interest thereon, be exempt from all
taxation by the State of West Virginia, or by any county, school district, municipality or political
subdivision thereof; and the revenue bonds may not be considered to be obligations or debts of the
state and the credit or taxing power of the state may not be pledged therefor, but the revenue bonds
shall be payable only from the revenue pledged therefor as provided in this section.
(k) Additional revenue bonds may be issued by the commission or governing boards pursuant
to this section and financed by additional revenues or funds dedicated from other sources.
There is
hereby created in the State Treasury a The special revenue fund
in the State Treasury known as the
Community and Technical College Capital Improvement Fund into which shall be deposited the
amounts specified in subsection (j), section eighteen, article twenty-two, chapter twenty-nine of this
code
is continued. All amounts deposited in the fund shall be pledged to the repayment of the
principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue
bonds authorized by the commission for community and technical college capital improvements or
used by the council on a cash basis as provided under subdivision (4), subsection (j), section eighteen, article twenty-two, chapter twenty-nine of this code for community and technical college
capital improvements or capital projects.
(l) Funding of systemwide and campus-specific revenue bonds under any other section of this
code is continued and authorized pursuant to the terms of this section. Revenues of any state
institution of higher education pledged to the repayment of any revenue bonds issued pursuant to this
code shall remain pledged.
(m) Any revenue bonds for state institutions of higher education proposed to be issued under
this section or other sections of this code first must be approved by the commission.
(n) Revenue bonds issued pursuant to this code may be issued by the commission or
governing boards, either singly or jointly.
(o) Fees pledged for repayment of revenue bonds issued under this section or article twelve-b,
chapter eighteen prior to
or after the effective date of this section shall be transferred to the
commission in a manner prescribed by the commission. The commission may transfer funds from
the accounts of institutions pledged for the repayment of revenue bonds issued prior to the effective
date of this section or issued subsequently by the commission upon the request of institutions, if an
institution fails to transfer the pledged revenues to the commission in a timely manner.
(p) Effective July 1, 2004, the capital and auxiliary capital fees authorized by this section and
section one of this article are in lieu of any other fees set out in this code for capital and auxiliary
capital projects to benefit public higher education institutions. Notwithstanding any other provisions
of this code to the contrary, in the event any capital, tuition, registration or auxiliary fees are pledged
to the payment of any revenue bonds issued pursuant to any general bond resolutions of the
commission, any of its predecessors or any institution, adopted prior to the effective date of this section,
such the fees shall remain in effect in amounts not less than the amounts in effect as of that
date, until the revenue bonds payable from any of the fees have been paid or the pledge of the fees
is otherwise legally discharged.
ARTICLE 19. CAPITAL PROJECTS AND FACILITIES NEEDS.
§18B-19-1. Legislative findings and intent.
(a) The Legislature makes the following findings:
(1) State institutions of higher education vary widely in the conditions of their facilities
infrastructure.
(2) State institutions of higher education vary widely in their ability to incur debt for capital
improvements. It is nearly impossible for community and technical colleges and some smaller
four-
year baccalaureate institutions to fund significant capital improvements in the absence of state
funding.
(3) A student enrolled at a community and technical college that previously was
administratively linked to
a baccalaureate another state institution
of higher education pays
substantially higher tuition and mandatory fees than a student enrolled at a freestanding community
and technical college. This cost discrepancy is due in large part to the significantly higher capital
fees charged to these students to pay debt service for capital improvements.
(4) The substantial amount of capital fees that students must pay at the institution level
contributes significantly to the poor grade the state receives in the category of 'Affordability' in
Measuring Up: The National Report Card on Higher Education.
(5) It is beneficial for the state to provide additional ongoing capital funding to reduce the
obligation of students and parents to bear the cost of higher education capital improvements and facilities maintenance.
(6) West Virginia is one of only a few states that does not address higher education capital
improvements and facilities maintenance needs through a statewide plan.
(7) State funding for capital improvements should align with state and system higher
education goals, objectives and priorities as set forth in article one-d of this chapter.
(8) State capital funding should focus primarily on educational and general capital
improvements, not auxiliary capital improvements.
(9) Renovations of existing buildings generally deserve greater consideration for state
funding than new construction. However, new construction may deserve greater consideration than
renovation when a state or system goal, objective or priority is implicated.
(10) As the Legislature increases funding for new educational and general capital
improvements and major renovations, and supplants existing educational and general debt,
institutions should target funds for maintenance and deferred maintenance needs.
(11) If community and technical colleges are to keep the cost of education affordable, they
cannot be expected to fund maintenance obligations entirely from student capital fees.
(12) The commission and council should scrutinize carefully all requests from institutions
to incur additional debt in order to determine their effect on institution debt capacity and the impact
that incurring additional debt will have on students.
(13) State institutions of higher education ultimately should target adequate state capital
contributions and capital fees to address maintenance and deferred maintenance needs.
(14) Until institutions are able to generate sufficient revenue to address maintenance and
deferred maintenance needs, the Legislature should provide periodic funding to assist institutions in addressing these needs. Funding priority should be given to projects that address building code
requirements and critical maintenance needs.
(15) In supporting future high priority capital needs, the Legislature, commission and council
should not reward institutions with state funding if they neglect to address facilities maintenance
needs or do not prudently manage their capital resources.
(16) Once an institution's capital development plan has been approved by the governing
board and the commission or council, as appropriate, project priorities should not change
significantly from year to year.
(17) Commission and council staff should participate to a greater extent in managing capital
projects at smaller institutions than at larger institutions since smaller institutions often lack the
expertise necessary to plan, design and complete projects at or under budget.
(b) The intent of the Legislature relating to this article includes, but is not limited to, the
following:
(1) Dedicated state funding sources shall be designated to finance construction and
renovation of educational and general facilities at state institutions of higher education from time to
time;
(2) Capital project lists submitted by institutions to the commission or council, as
appropriate, and capital project lists submitted by the commission and council to the state budget
office, Legislative Oversight Commission on Education Accountability, and Joint Committee on
Government and Finance for consideration for state funding shall be reasonable requests that align
with state and system goals, objectives and priorities and ones which reasonably could be funded if
approved;
(3) As the Legislature increases its responsibility for financing new educational and general
facilities and major renovations, the commission, council and institutions shall ensure that sufficient
capital revenues are available for maintenance and that the facilities are maintained adequately;
(4) Ongoing state funding shall be dedicated to supplement capital fees available for
maintenance at community and technical colleges; and
(5) Once a system capital plan is in place, institutions shall set aside adequate funding
annually to ensure that ongoing facilities maintenance needs are met.
§18B-19-2. Definitions.
As used in this article, the following terms have the meanings ascribed to them.
(a) 'ADA' means the Americans with Disabilities Act of 1990, 42 U.S.C. §12101,
et seq.
(b) 'Auxiliary enterprise' means an entity that exists to furnish goods or services to students,
faculty, staff or others; charges a fee directly related to, although not necessarily equal to, the cost
of the goods or services; and is managed as essentially self-supporting.
(c) 'Auxiliary facility' means a building or structure that is used for an auxiliary enterprise
including, but not limited to, residence halls, food services, parking, intercollegiate athletics, faculty
and staff housing, student unions, bookstores and other service centers.
(d) 'Auxiliary fees' means funds derived from, but not limited to, the following sources:
(1) Parking fees received from any source;
(2) Revenues received from athletic events, including ticket sales, television revenues and
skybox fees;
(3) Bookstore revenues;
(4) Student union vendor and user fees;
(5) Donations or grants from any external source;
(6) Facility rental fees; and
(7) Fees assessed to students to support auxiliary enterprises.
(e) 'Capital planning' means a purposeful activity that focuses attention on long term physical
plant objectives which should be accomplished in a logical sequence over time as opportunities arise
and resources become available.
(f) 'Capital project management' means planning, designing, bidding and providing
construction administration and oversight of architectural, engineering and construction contracts
and projects.
(g) 'Deferred maintenance' means repair, maintenance and renewal of capital facilities which
should be part of normal maintenance management, but which have been postponed to a future
budget cycle or until funds become available.
(h) 'Educational and general capital fees' means the fees collected from students to pay debt
service for capital improvement bonds issued by the commission and governing boards for
educational and general facilities, for the maintenance of those facilities and to fund capital
improvements in those facilities on a cash basis.
(i) 'Educational and general facility' means a building or structure used for instruction and
instructional support purposes, and includes classroom, laboratory, library, computer laboratory,
faculty and administrative office and other academic support spaces.
(j) 'Extraordinary circumstance' or 'extraordinary circumstances' means, a situation
involving life-safety issues, issues that would result in extensive damage to a facility if not addressed
immediately, any unforeseen opportunity to use external funds and any other situation the commission or council determines should warrant special consideration.
(k) 'Life-safety' means a condition existing on a campus that, if not corrected immediately,
would jeopardize the safety and property of students, faculty, staff and the visiting public.
(l) 'Maintenance' means the work necessary within a budget cycle to realize the originally
anticipated life of a fixed asset, including buildings, fixed equipment and infrastructure.
(m) 'Governing board', 'state institution of higher education' and 'institution under the
jurisdiction of the commission' means all state institutions of higher education including Marshall
University and West Virginia University and their respective governing boards.
§18B-19-3. System capital development planning.
(a) By December 31, 2011, the commission and council, jointly or separately, shall develop
a system capital development plan for approval by the Legislative Oversight Commission on
Education Accountability. At a minimum the initial plan shall include the following:
(1) System goals for capital development;
(2) An explanation of how system capital development goals align with state goals, objectives
and priorities established in articles one and one-d of this chapter and with system master plans;
(3) A process for prioritizing capital projects for state funding based on their ability to further
state goals, objectives and priorities and system capital development goals;
(4) A building renewal formula to calculate a dollar benchmark that shall be collected
annually and invested in facilities to minimize deferred maintenance and to provide the commission
and council objective information to determine if the investments in maintenance are occurring;
(5) A process for governing boards to follow in developing and submitting campus
development plans to the commission or council, as appropriate, for approval;
(6) A process for governing boards to follow to ensure that sufficient revenue is generated
for and applied toward facilities maintenance; and
(7) A discussion addressing how capital fees dedicated to debt service for the bond issue to
be paid off in 2012 will be used after the payoff date.
(b) The system capital development plan shall be developed in consultation with governing
boards and appropriate institution staff. Before approving the capital development plan, the
commission and council shall afford interested parties an opportunity to comment on the plan
through a notice-and-comment period of at least thirty days.
(c) The commission and council shall update its system capital development plan at least
once in each ten-year period.
§18B-19-4. Campus development plans.
(a) Each governing board shall update its current campus development plan and submit the
updated plan to the commission or council, as appropriate, for approval by June 30, 2013. A campus
development plan shall be developed for a ten-year period and shall align with criteria specified in
the following sources:
(1) The system capital development plan;
(2) The institution's approved master plan and compact; and
(3) The current campus development plan objectives.
(b) Campus development plans are intended to be aspirational; however, an institution's plan
shall be appropriate to its size, mission, and enrollment and to the fiscal constraints within which the
institution operates. At a minimum the campus development plan shall include the following:
(1) The governing board's development strategy;
(2) An assessment of the general condition and suitability of buildings and facilities,
including deferred maintenance, life-safety and building code issues, ADA requirements and energy
efficiency;
(3) An assessment of the impact of projected enrollment and demographic changes on
building and facility needs;
(4) A comprehensive list of deferred maintenance projects that need to be addressed for each
campus by building or facility including an estimated cost for each;
(5) A list of existing buildings and facilities in need of renovations, additions, demolition or
any combination thereof;
(6) A list of major site improvements that are needed, including vehicular and pedestrian
circulation, parking and landscaping;
(7) A list of telecommunications, utilities and other infrastructure improvements that are
needed;
(8) A delineation of clear property acquisition boundaries that are reasonably appropriate for
campus expansion;
(9) A list of proposed new facilities and building sites;
(10) A list of capital projects in priority order;
(11) Estimates of the timing, phasing and projected costs associated with individual projects;
(12) If an institution has multiple campuses in close proximity, a delineation of how the
campuses should interact and support each other to minimize duplication of facilities, improve
efficiency and be aesthetically compatible;
(13) A statement of the impact of the plan upon the local community and the input afforded local and regional government entities and the public with respect to its implementation; and
(14) Any other requirement established by the commission and council in the rules required
by section seventeen of this article.
(c) Campus development plans shall incorporate all current and proposed facilities, including
educational and general and auxiliary facilities.
(d) At the next regularly scheduled meeting of the commission or council, as applicable,
following the fifth anniversary date after the commission or council approves the development plan
of a governing board, the governing board shall report on the progress made in the first five years
to implement the campus development plan for each campus under its jurisdiction. In addition, the
governing board shall report on its plans to implement the remaining five-year period of its campus
development plan.
(e) Each governing board shall update its campus development plan at least once during each
ten-year period and any update is subject to the approval of the commission or council, as
appropriate.
(f) A governing board may not implement a campus development plan or plan update that
has not been approved by the commission or council, as appropriate.
§18B-19-5. Capital appropriation requests.
(a) The commission and council each shall submit a prioritized capital appropriation request
annually to the state budget office as required by article two, chapter eleven-b of this code consisting
of major capital projects and maintenance projects.
(b) The commission and council each shall develop a process for governing boards to follow
in submitting a list of major educational and general capital projects so that a prioritized major capital project list, approved by the commission or council, as appropriate, may be submitted to the
state budget office by the applicable deadline.
(1) The governing board's major capital project list shall include the following items:
(A) Projects identified in the governing board's approved campus development plan or plans.
A project may not be included which is not contained in the approved plan, except when
extraordinary circumstances otherwise warrant;
(B) A current estimate of each project's estimated cost accounting for inflation since
completion of the campus development plan. The size and scope of the project may not change
unless the campus development plan has been updated and approved as provided in section three of
this article; and
(C) Any additional information required to be provided by the commission, council or state
budget office.
(2) The commission and council each shall rank the major capital projects submitted by the
governing boards according to priority consistent with the criteria outlined in the system capital
development plan. The council and commission may not submit to the state budget office a request
for an institution which the commission or council determines reasonably could not secure funding
through the appropriation process during the following fiscal year.
(c) The commission and council each shall develop a process for governing boards to follow
in submitting a list of maintenance projects so that a prioritized maintenance project list, approved
by the commission or council, as appropriate, may be submitted to the state budget office by the
applicable deadline.
(1) No later than April 1, 2011, and annually thereafter, the commission and council, as appropriate, shall provide each governing board a building renewal calculation that identifies the
funds that should be collected and invested in its buildings and facilities during the next fiscal year
to maintain them and minimize deferred maintenance.
(2) As soon as it receives the building renewal calculation, each governing board shall make
realistic revenue estimates of the funds available for maintenance projects from educational and
general capital fees, from auxiliary and auxiliary capital fees and from any other revenue that may
be used for maintenance projects, as well as any anticipated reserves. The governing boards then
shall identify and submit proposed maintenance projects, consistent with its campus development
plan or plans, to be funded from these revenues.
(3) The commission and council each shall report to the Legislative Oversight Commission
on Education Accountability on the revenue available to governing boards for educational and
general and auxiliary maintenance projects, as well as any shortfalls based on building renewal
formula calculation, and major maintenance projects that institutions propose to undertake during
the upcoming fiscal year.
(4) The commission shall work with institutions under its jurisdiction to ensure that adequate
funds are generated to fund maintenance and build adequate reserves from educational and general
and auxiliary capital fees and other revenue consistent with the building renewal formula. The
Legislature recognizes that it may take several years for this to be accomplished fully.
(5) The council shall work with the Legislature and institutions under its jurisdiction to
ensure that a combination of appropriated and nonappropriated revenue is available to fund
maintenance and build adequate reserves at community and technical colleges consistent with the
building renewal formula.
§18B-19-6. Capital project financing.
(a) The commission and governing boards, jointly or singly, may issue revenue bonds for
capital project financing in accordance with section eight, article ten of this chapter.
(b) A governing board may seek funding for and initiate construction or renovation work only
for projects contained in an approved campus development plan.
(c) A governing board may fund capital improvements on a cash basis, through bonding or
through another financing method that is approved by the commission and by the council, if
appropriate.
(1) If the cost of an improvement project for any institution, except Marshall University or
West Virginia University, exceeds $1 million, the governing board first shall obtain the approval of
the commission or council, as appropriate. If the cost of an improvement project for Marshall
University or West Virginia University exceeds
$5 $15 million, the governing board first shall obtain
the approval of the commission.
(2) Prior to approving bonding or any alternative financing method, the commission, and
council if appropriate, shall evaluate the following issues:
(A) The institution's debt capacity and ability to meet the debt service payments for the full
term of the financing;
(B) The institution's capacity to generate revenue sufficient to complete the project;
(C) The institution's ability to fund ongoing operations and maintenance;
(D) The impact of the financing arrangement on students; and
(E) Any other factor considered appropriate.
(d) A governing board shall notify the Joint Committee on Government and Finance at least thirty days before beginning construction or renovation work on any capital project in excess of $1
million.
(e) The commission may pledge all or part of the fees of any or all state institutions of higher
education as part of a system bond issue.
(f) Any fee or revenue source pledged prior to the effective date of this section for payment
of any outstanding debt remains in effect until the debt is fully repaid or refunded.
§18B-19-7. Capital project management.
(a) The commission, council and governing boards shall ensure that capital funds are spent
appropriately and that capital projects are managed effectively. Project management shall be
conducted in all respects according to sound business practices and applicable laws, and rules.
(b) The commission shall employ a sufficient number of competent facilities staff
experienced in capital project development and management that is suitable for the number, size and
complexity of the capital projects being managed. By December 31, 2011, and continuing thereafter,
at least one employee shall be Leadership in Energy and Environmental Design (LEED) certified.
(c) An institution that has entered into construction contracts averaging more than $50
million over the most recent rolling five-year period is responsible for capital project management
at that institution if it meets the following additional conditions:
(1) The governing board shall employ a facilities staff experienced in capital project
development and management that is suitable for the number, size and complexity of the capital
projects being managed and, by December 31, 2011, and continuing thereafter, at least one of these
employees shall be Leadership in Energy and Environmental Design (LEED) certified;
(2) The governing board shall promulgate and adopt a capital project management rule in accordance with section six, article one of this chapter which is consistent with the capital
management rules of the commission and council. The capital project management rule shall include
at least the following items:
(A) Delineation of the governing board's responsibilities with respect to capital project
management and the responsibilities delegated to the institution's president;
(B) A requirement for the use of the state's standard contract documents for architectural,
engineering, construction, construction management and design-build services as appropriate to a
particular project;
(C) The governing board's requirements for the following procedures:
(i) Monitoring and approving project designs to ensure conformance with the state and
system goals, objectives and priorities and the governing board's master plan, compact and campus
development plan;
(ii) Approving project budgets, including a reasonable contingency reserve for unknown or
unexpected expenses and for bidding;
(iii) Approving architectural, engineering and construction contracts exceeding an amount
to be determined by the governing board;
(iv) Approving contract modifications and construction change orders; and
(v) Providing a method for project closeout and final acceptance of the project by the
governing board.
(3) The institutional capital project management rule shall be filed with the commission no
later than one hundred eighty days following the effective date of the rule required of the commission
and council in section seventeen of this article.
(4) The commission may review or audit projects greater than $5 million periodically to
ascertain that appropriate capital project management practices are being employed.
(d) For institutions that have entered into construction contracts averaging at least $20
million, but not more than $50 million, over the most recent rolling five-year period:
(1) The governing board, with assistance as requested from the commission, shall manage
all capital projects if the governing board meets the following conditions:
(A) Employs at least one individual experienced in capital project development and
management; and
(B) Promulgates and adopts a capital project management rule in accordance with section six,
article one of this chapter that is approved by the commission. The capital project management rule
may be amended at the discretion of the governing board, but amendments shall be submitted to the
commission for review and approval before becoming effective.
(2) The capital project management rule of the governing board shall include at least the
following items:
(A) Delineation of the governing board's responsibilities with respect to capital project
management and the responsibilities delegated to the institution's president;
(B) A requirement for the use of the state's standard contract documents for architectural,
engineering, construction, construction management and design-build services as appropriate to a
particular project; and
(C) The governing board's requirements for the following procedures:
(i) Monitoring and approving project designs to ensure conformance with the state and
system goals, objectives and priorities and the governing board's master plan, compact and campus development plan;
(ii) Approving project budgets, including a reasonable contingency reserve for unknown or
unexpected expenses and for bidding;
(iii) Approving architectural, engineering, construction and other capital contracts exceeding
an amount to be determined by the governing board;
(iv) Approving contract modifications and construction change orders; and
(v) Providing a method for project closeout and final acceptance of the project by the
governing board.
(3) If an institution does not meet the provisions of this subsection, the commission shall
manage all capital projects exceeding $1 million.
(4) The commission staff shall review and audit periodically all projects greater than $1
million to ascertain that appropriate project management practices are being employed. If serious
deficiencies are identified and not addressed sufficiently within ninety days, commission staff may
assume management of all projects.
(e) For institutions that have entered into construction contracts averaging less than $20
million over the most recent rolling five-year period and for all community and technical colleges,
the commission and council shall manage capital projects exceeding $1 million. In the rule required
by section seventeen of this article, the commission and council, as appropriate, shall adopt
procedures to afford participation by the governing boards and staff in the planning, development
and execution of capital projects.
§18B-19-8. Maintenance.
(a) Each governing board shall ensure that facilities under its jurisdiction are maintained and that a listing of any major deferred maintenance projects is provided annually to the commission or
council, as appropriate.
(b) Each governing board shall strive to invest annually an amount for maintenance that is
consistent with the building renewal formula developed and approved by the commission and
council and to generate a reserve sufficient to address unexpected maintenance needs.
(c) The commission and council shall determine whether a governing board is devoting
sufficient resources for maintenance based on the following criteria:
(1) The amount of maintenance expenditures compared to building renewal formula estimates
of appropriate expenditures; and
(2) Periodic evaluations of the conditions of facilities at the institution and its performance
and effectiveness in maintaining its facilities.
§18B-19-9. Higher education facilities information system.
(a) The commission and council jointly shall develop and maintain a higher education
facilities information system. The higher education facilities information system shall serve as a
vehicle for carrying out the following functions:
(1) Acquisition of statewide data;
(2) Statewide standardization of space use and classification based on nationally recognized
standards and measurements to facilitate comparisons among post-secondary education institutions
within the state and in the region and nation; and
(3) Other purposes as determined by the commission and council.
(b) At a minimum the higher education facilities information system shall serve the following
purposes:
(1) Develop and maintain a statewide inventory of higher education facilities, including those
acquired by long-term lease, lease-purchase or other arrangement whereby the institution has long-
term beneficial use. The inventory shall include, but is not limited to, the institution and campus
location of the facility, the construction date, the original cost, square footage, floor plans, type of
construction, ownership status, the purposes for which it is used, the current replacement cost and
any other data the commission and council consider appropriate;
(2) Develop and maintain an inventory of all rooms within each facility, which includes, but
is not limited to, the room number, the square footage, room usage, number of student stations and
any other data the commission and council consider appropriate;
(3) Provide a vehicle for institutions to submit capital appropriation requests to the
commission and council;
(4) Provide a vehicle to track the status and cost of institution capital projects from inception
to completion, including major maintenance and deferred maintenance projects; and
(5) Provide information on facilities needed to calculate the building renewal formula.
(c) The commission and council shall establish benchmarks for classroom and class
laboratory use including an analysis of utilization for the fall and spring semesters of each academic
year. The efficient use of classrooms and class laboratories is a factor in determining whether an
institution needs additional classroom and laboratory facilities.
(d) Each governing board and any institution under its jurisdiction shall participate and
cooperate with the commission and council in all respects in the development and maintenance of
the higher education facilities information system.
(e) The higher education facilities information system may be used for other purposes set forth by the commission and council in the rules required by section seventeen of this article.
§18B-19-10. Authorization to sell property; use of proceeds.
(a) Notwithstanding any other provision of law or this code to the contrary, the commission,
council and governing boards each may sell, lease, convey or otherwise dispose of all or part of any
real property that it owns, either by contract or at public auction, and retain the proceeds of the
transaction.
(1) The commission, council and governing boards may not sell, lease, convey or otherwise
dispose of any real property without first performing the following steps:
(A) Providing for property appraisal by two independent licensed appraisers. The property
may not be sold for less than the average of the two appraisals;
(B) Providing notice to the public in the county in which the real property is located by a
Class II legal advertisement pursuant to section two, article three, chapter fifty-nine of this code;
(C) Holding a public hearing on the issue in the county in which the real property is located;
and
(D) In the case of the commission, notifying the Joint Committee on Government and
Finance.
(2) Any proceeds from the sale, lease, conveyance or other disposal of real property that is
used jointly by institutions or for statewide programs under the jurisdiction of the commission or the
council shall be transferred to the General Revenue Fund of the state.
(b) The commission, council or a governing board shall deposit the net proceeds from the
sale, lease, conveyance or other disposal of real property into a special revenue account in the State
Treasury to be appropriated by the Legislature in the annual budget bill for the purchase of additional real property, equipment or technology, or for capital improvements or maintenance at the institution
that sold the surplus real property.
§18B-19-11. Authorization to lease-purchase.
(a) The commission or council may enter into lease-purchase agreements for capital
improvements, including equipment, on behalf of, or for the benefit of, a state institution of higher
education, the commission or council.
(b) After the commission or council, as appropriate, has granted approval for a lease-purchase
agreement by a governing board, the board may enter into a lease-purchase agreement for capital
improvements, including equipment.
(c) The governing boards of Marshall University and West Virginia University may enter into
lease-purchase agreements without seeking the approval of the commission.
(d) A lease-purchase agreement constitutes a special obligation of the State of West Virginia.
The obligation may be met from any funds legally available to the commission, council or the
institution and shall be cancelable at the option of the commission, council, or governing board at
the end of any fiscal year. The obligation, or any assignment or securitization of the obligation,
never constitutes an indebtedness of the State of West Virginia or any department, agency or political
subdivision of the state, within the meaning of any constitutional provision or statutory limitation,
and may not be a charge against the general credit or taxing powers of the state or any political
subdivision of the state. The facts shall be plainly stated in any lease-purchase agreement.
(e) A lease-purchase agreement shall prohibit assignment or securitization without consent
of the lessee and the approval of the agreement as to form by the Attorney General. Proposals for
any agreement shall be requested in accordance with the requirements of this section and rules of the commission and council. In addition, any lease-purchase agreement that exceeds $100,000 total
shall be approved as to form by the Attorney General.
(f) The interest component of any lease-purchase obligation is exempt from all taxation of
the State of West Virginia, except inheritance, estate and transfer taxes. It is the intent of the
Legislature that if the requirements set forth in the Internal Revenue Code of 1986, as amended, and
any regulations promulgated pursuant thereto are met, the interest component of any lease-purchase
obligation also is exempt from the gross income of the recipient for purposes of federal income
taxation and may be designated by the governing board or the president of the institution as a bank-
qualified obligation.
§18B-19-12. Authorization to lease.
(a) Notwithstanding any other provision of this code to the contrary, the commission, council
and governing boards may lease, or offer to lease, as lessee, any grounds, buildings, office or other
space in the name of the state.
(b) The commission, council and governing boards have sole authority to select and to
acquire by contract or lease all grounds, buildings, office space or other space, the rental of which
is required necessarily by the commission, council or institutions.
(c) Before executing any rental contract or lease, the commission, council or a governing
board shall determine the fair market value for the rental of the requested grounds, buildings, office
space or other space, in the condition in which they exist, and shall contract for or lease the premises
at a price not to exceed the fair market value.
(d) The commission, council and each governing board may enter into long-term agreements
for buildings land and space for periods longer than one fiscal year but not to exceed forty years.
(e) Any lease shall contain, in substance, all the following provisions:
(1) The commission, council or governing board, as lessee, has the right to cancel the lease
without further obligation on the part of the lessee upon giving thirty days' written notice to the lessor
at least thirty days prior to the last day of the succeeding month;
(2) The lease is considered canceled without further obligation on the part of the lessee if the
Legislature or the federal government fails to appropriate sufficient funds for the lease or otherwise
acts to impair the lease or cause it to be canceled; and
(3) The lease is considered renewed for each ensuing fiscal year during the term of the lease
unless it is canceled by the commission, council or governing board before the end of the then-
current fiscal year.
(f) The commission, council or institution that is granted any grounds, buildings, office space
or other space leased in accordance with this section may not order or make permanent changes of
any type thereto, unless the commission, council or governing board, as appropriate, has first
determined that the change is necessary for the proper, efficient and economically sound operation
of the institution. For purposes of this section, a 'permanent change' means any addition, alteration,
improvement, remodeling, repair or other change involving the expenditure of state funds for the
installation of any tangible thing that cannot be economically removed from the grounds, buildings,
office space or other space when vacated by the institution.
(g) Leases and other instruments for grounds, buildings, office or other space, once approved
by the commission, council or governing board, may be signed by the chief executive officer, or
designee, of the commission, council or institution.
(h) Any lease or instrument exceeding $100,000 annually shall be approved as to form by the Attorney General. A lease or other instrument for grounds, buildings, office or other space that
contains a term, including any options, of more than six months for its fulfillment shall be filed with
the State Auditor.
§18B-19-13. Real property contracts and agreements.
(a) Except as provided elsewhere in this article, any purchase of real estate, any lease-
purchase agreement and any construction of new buildings or other acquisition of buildings, office
space or grounds resulting from these transactions, shall be approved by the commission or council,
as appropriate, and provided to the Joint Committee on Government and Finance for prior review,
if the transaction exceeds $1 million.
(b) The commission, council and each governing board shall provide the following to the
Joint Committee on Government and Finance:
(1) A copy of any contract or agreement to which it is a party for real property if the contract
or agreement exceeds $1 million; and
(2) A report setting forth a detailed summary of the terms of the contract or agreement,
including the name of the property owner and the agent involved in the sale.
(c) The copy and report required by subsection (b) of this section shall be provided at least
thirty days before any sale, exchange, transfer, purchase, lease-purchase, lease or rental of real
property, refundings of lease-purchases, leases or rental agreements, construction of new buildings,
and any other acquisition or lease of buildings, office space or grounds.
(d) A contract or agreement that is for the lease purchase, lease or rental of real property,
where the costs of real property acquisition and improvements are to be financed, in whole or in part,
with bond proceeds, may contain a preliminary schedule of rents and leases for purposes of review by the committee.
(e) For renewals of contracts or agreements required by this section to be reported, the
commission, council or governing board shall provide a report setting forth a detailed summary of
the terms of the contract or agreement, including the name of the property owner.
(f) The Joint Committee on Government and Finance shall meet and review any contract,
agreement or report within thirty days of receipt.
(g) Each governing board shall provide to the commission or council, as appropriate, a copy
of any contract or agreement submitted to the Joint Committee on Government and Finance pursuant
to this section.
§18B-19-14. Authorization for sale lease-back.
(a) Notwithstanding any other provision of this code to the contrary, a governing board may
sell any building that is on unencumbered real property to which the board holds title and may lease
back the same building if the governing board obtains approval of the commission or council, as
appropriate, before incurring any obligation. The board shall deposit the net proceeds of the
transaction into a special revenue account in the State Treasury to be appropriated by the Legislature
for the use of the institution at which the real property is located. Prior to such action, the board
shall take the following steps:
(1) Provide for the property to be appraised by two licensed appraisers. The board may not
sell the property for less than the average of the two appraisals; and
(2) Retain independent financial and legal services to examine fully all aspects of the
transaction.
(b) The sale may be made only to a special purpose entity that exists primarily for the purpose of supporting the institution at which the building is located.
§18B-19-15. Construction and operation of auxiliary facilities; fees for auxiliary enterprises.
(a) A governing board may provide, construct, erect, improve, equip, maintain and operate
auxiliary facilities, as defined in section two of this article, for students, employees and visitors on
land it owns or leases.
(b) The cost of construction, erection, improvement or equipment may be paid with the
proceeds of revenue bonds authorized by this code or by any other financing method provided in this
article.
(c) A governing board may engage experts in engineering, architecture and construction and
other experts as it considers necessary and may specify the payment and contract terms which are
included in the cost of the project.
(d) A governing board may promulgate and adopt rules and charge fees for use of its
facilities. The fees charged shall be structured so as to generate funds sufficient for the following
purposes:
(1) To maintain payment of the principal of and interest on any revenue bonds, and for
reserves for the revenue bonds;
(2) To operate the auxiliary enterprise;
(3) To satisfy annual building renewal formula requirements; and
(4) To build a reserve for major renovation or replacement.
(e) All moneys collected for the use of auxiliary facilities shall be paid to the credit of and
expended by the governing board of that institution in accordance with section thirteen, article ten
of this chapter.
§18B-19-16. Condemnation generally.
(a) The commission, council and governing boards each may acquire land or buildings by
condemnation for the use and benefit of any state institution under its jurisdiction. A condemnation
proceeding conducted pursuant to this section is governed by chapter fifty-four of this code.
(b) The commission, council and governing boards each may condemn any interest, right or
privilege, land or improvement, which in its opinion is necessary, in the manner provided by law for
the acquisition by this state of property for public purposes. The state is under no obligation to
accept and pay for any property condemned and may pay for the property only from the funds
provided for that purpose.
(c) In any proceeding to condemn, the order shall be made by the court having jurisdiction
of the suit, action or proceedings. A bond or other security may be required by the court securing
the property owner against any loss or damage to be sustained by reason of the state's failure to
accept and pay for the property. The bond or security may not impose liability or debt on or of the
state as contemplated by the Constitution of the State in relation to state debt.
§18B-19-17. Legislative rule.
The commission and council jointly shall propose a rule or rules for legislative approval in
accordance with article three-a, chapter twenty-nine-a of this code, to implement this article.
§18B-19-18. Reporting.
(a) By July 1, 2013, and annually thereafter, the commission and council shall provide a
general status report to the Legislative Oversight Commission on Education Accountability on the
progress being made in implementing the state-wide capital development plan and on the progress
of the governing boards in implementing the objectives of institutions' campus development plans.
(b) The process required by the commission and council for reporting by the governing
boards shall be included in the rules required by section seventeen of this article."
And by amending the title of the bill to read as follows:
H. B. 4026 - "A Bill to repeal §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18-23-5, §18-23-13,
§18-23-14, §18-23-15, §18-23-18, §18-23-22, §18-23-23 and §18-23-24 of the Code of West
Virginia, 1931, as amended; to repeal §18B-14-1, §18B-14-2, §18B-14-3, §18B-14-4, §18B-14-5,
§18B-14-5a, §18B-14-6 and §18B-14-7 of said code; to amend and reenact §5-6-4a of said code; to
amend and reenact §18B-1B-4 of said code; to amend and reenact §18B-2A-4 of said code; to amend
and reenact §18B-2B-6 of said code; to amend and reenact §18B-4-6 of said code; to amend and
reenact §18B-5-4 of said code; to amend and reenact §18B-10-8 of said code; and to amend said
code by adding thereto a new article, designated §18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4,
§18B-19-5, §18B-19-6, §18B-19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11, §18B-19-12,
§18B-19-13, §18B-19-14, §18B-19-15, §18B-19-16, §18B-19-17 and §18B-19-18, all relating to
higher education capital facilities generally; repealing certain specific duties of governing boards of
higher education institutions; eliminating condemnation rights of those boards; eliminating execution
of contracts and deeds by those boards; eliminating certain obligation concerning capital construction
and repair duties; eliminating the authority of certain state institutions from selling certain properties
and lease-back provisions; replacing those duties that are being repealed with similar responsibilities;
setting forth certain specific responsibilities of the Higher Education Policy Commission and the
Council for Community and Technical College Education; reviewing tuition and fee increases;
reviewing and approving capital project planning, financing, management and maintenance;
permitting the acquisition, sale, transfer, exchange, lease, conveyance and condemnation of real property; permitting the construction and operation of capital facilities; permitting the collection and
use of certain capital fees; establishing in the State Treasury a capital maintenance fund for each state
institution of higher education; setting forth legislative findings and intent; defining terms; requiring
rulemaking; providing for system facilities institution and facilities planning; designating Marshall
Community and Technical College as Mountwest Community and Technical College; making certain
technical corrections; and deleting certain obsolete language."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 291), and there were--yeas
96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann, Fleischauer and Manchin.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4026) 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 of the report of the Committee of
Conference on, and the passage, as amended by said report, to take effect from passage, and
requested the concurrence of the House of Delegates in the passage, of
S. B. 611, Removing location requirement for certain higher education offices.
Conference Committee Report
Delegate Campbell, from the Committee of Conference on matters of disagreement between the two houses, as to
S. B. 611, Removing location requirement for certain higher education offices,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments of the House to Engrossed Senate Bill No. 611 having met, after full and free
conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the House
of Delegates on page thirty-three, section six, line one hundred ninety-one and agree to the same as
follows:
By changing the semi-colon to a colon and inserting the following language:
Provided,
however, That the current employees of WVNET shall not be moved from Monongalia County
without legislative approval;
And,
That the Senate agree to the remaining amendments of the House of Delegates to the bill and
to its title.
Respectfully submitted,
Brooks McCabe,
Thomas W. Campbell,
Robert H. Plymale,
Charlene Marshall,
Karen L. Facemyer,
William Anderson,
Conferees on the partConferees on the part
of the Senate. of the House of Delegates.
On motion of Delegate Campbell, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 292),
and there were--yeas 78, nays 18, absent and not voting 4, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Beach, Blair, Carmichael, Cowles, Duke, Ireland, Lane, C. Miller,
J. Miller, Overington, Porter, Schoen, Shook, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann, Fleischauer and Manchin.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 611) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 293), and there were--yeas 82, nays
14, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Beach, Carmichael, Cowles, Duke, Lane, C. Miller, J. Miller,
Schoen, Shook, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann, Fleischauer and Manchin.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 611) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with title amendment, a bill
of the House of Delegates, as follows:
H. B. 2485, Allowing pharmacy interns to vend pseudoephedrine and other chemical
precursors of methamphetamine.
On motion of Delegate Boggs, the House of Delegates concurred in the Senate title
amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 294), 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: Argento, Cann and Fleischauer.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2485) 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. 4182, Relating to the emergency medical services retirement system act.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, after the enacting section by inserting the following:
"
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-2a. Restrictions on hiring a retired state employee.
An employee who has retired from a spending unit and who on or after July 1, 2010 is subsequently hired by a different spending unit or rehired by his or her former spending unit shall
be considered a new eligible employee, and may not use the employee's prior service to enhance his
or her incremental salary increases and accrual of annual leave:
Provided, That an employee who
retires and is eligible to suspend his or her annuity upon being rehired as a regular employee on a
full-time basis by a participating employer of the same retirement system, and who again becomes
a contributing member of the retirement system, is not considered a new employee and may use prior
service toward recalculated retirement benefits and to enhance incremental salary increases and
accrual of annual leave."
And by amending the enacting section to read as follows:
"That Code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §5-5-2a; and that §16-5V-2, §16-5V-6, §16-5V-7, §16-5V-8, §16-5V-18,
§16-5V-19, §16-5V-20 and §16-5V-21 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. 4182 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §5-5-2a; and to amend and reenact §16-5V-2, §16-5V-6,
§16-5V-7, §16-5V-8, §16-5V-18, §16-5V-19, §16-5V-20 and §16-5V-21 of said code, relating to
the emergency medical services retirement system act and the suspension of certain annuities when
a state retirant is rehired by a spending unit on a full-time basis; modifying definitions; making
technical changes; procedures for the transfer of contributions; clarifying actuarial valuation period;
clarifying employer contribution amount; specifying procedures for the correction of errors;
providing onset date for receipt of disability benefits; providing for the termination of disability benefits when a retirant refuses to submit to a medical examination or provide certification from a
physician of continued disability; and the rehiring of retirants."
On motion of Delegate Boggs, the House refused to concur in the Senate amendments and
requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 4397, Requiring the Superintendent of the State Police to implement
a plan to increase the number of troopers.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section three, line nine, by striking out the words "a minimum number of" and
inserting in lieu thereof the words "up to".
On page two, section three, line ten, by striking out "2014"and the period, and inserting in
lieu thereof the following: 2016:
Provided, That the superintendent shall annually report to the Joint
Committee on Government and Finance on the progress of said program.
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4397 - "A Bill to amend and reenact §15-2-3 of the Code of West
Virginia, 1931, as amended, relating to requiring the Superintendent of the State Police to develop
a program to increase the number of troopers up to eight hundred troopers by July 1, 2016; and requiring the superintendent to annually report to the Joint Committee on Government and Finance
on the progress of said program."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 295), and there were--yeas
96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann, Fleischauer and Hatfield.
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. 4397) 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. 4450, Relating to land surveyors.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"CHAPTER 1. THE STATE AND ITS SUBDIVISIONS.
ARTICLE 1. LIMITS AND JURISDICTION.
§1-1-5. West Virginia coordinate systems; definition; plane coordinates, limitations of use; conversion factor for meters to feet.
(a) The systems of plane coordinates which have been established by the National Ocean
Service/National Geodetic Survey (formerly the United States Coast and Geodetic Survey) or its
successors for defining and stating the geographic position or locations of points on the surface of
the earth within West Virginia are to be known and designated as the West Virginia Coordinate
System of 1927 and the West Virginia Coordinate System of 1983.
(b) For the purpose of the use of this system the state is divided into a North Zone and a
South Zone.
The area now included in the following counties is the North Zone: Barbour, Berkeley,
Brooke, Doddridge, Grant, Hampshire, Hancock, Hardy, Harrison, Jefferson, Marion, Marshall,
Mineral, Monongalia, Morgan, Ohio, Pleasants, Preston, Ritchie, Taylor, Tucker, Tyler, Wetzel, Wirt
and Wood.
The area now included in the following counties is the South Zone: Boone, Braxton, Cabell,
Calhoun, Clay, Fayette, Gilmer, Greenbrier, Jackson, Kanawha, Lewis, Lincoln, Logan, McDowell,
Mason, Mercer, Mingo, Monroe, Nicholas, Pendleton, Pocahontas, Putnam, Raleigh, Randolph,
Roane, Summers, Upshur, Wayne, Webster and Wyoming.
(c) As established for use in the North Zone, the West Virginia Coordinate System of 1927
or the West Virginia Coordinate System of 1983 shall be named and in any land description in which
it is used it shall be designated the West Virginia Coordinate System of 1927 North Zone or West
Virginia Coordinate System of 1983 North Zone.
As established for use in the South Zone, the West Virginia Coordinate System of 1927 or
the West Virginia Coordinate System of 1983 shall be named and in any land description in which it is used it shall be designated the West Virginia Coordinate System of 1927 South Zone or West
Virginia Coordinate System of 1983 South Zone.
(d) The plane coordinate values for a point on the earth's surface, used to express the
geographic position or location of the point in the appropriate zone of this system, shall consist of
two distances, expressed in U. S. Survey feet and decimals of a foot when using the West Virginia
Coordinate System of 1927 and determined in meters and decimals when using the West Virginia
Coordinate System of 1983, but which may be converted to and expressed in feet and decimals of
a foot. One of these distances, to be known as the x-coordinate, shall give the position in an east-
and-west direction. The other, to be known as the y-coordinate, shall give the position in a north-
and-south direction.
These coordinates shall be made to depend upon and conform to plane rectangular coordinate
values for the monumented points of the North American Horizontal Geodetic Control Network as
published by the National Ocean Service/National Geodetic Survey (formerly the United States
Coast and Geodetic Survey) or its successors and whose plane coordinates have been computed on
the system defined by this section. Any such station may be used for establishing a survey
connection to either West Virginia Coordinate System.
(e) For purposes of describing the location of any survey station or land boundary corner in
the State of West Virginia, it shall be considered a complete, legal and satisfactory description of the
location to give the position of the survey station or land boundary corner on the system of plane
coordinates defined in this section. Nothing contained in this section requires a purchaser or
mortgagee of real property to rely wholly on a land description, any part of which depends
exclusively upon either West Virginia Coordinate System.
(f) When any tract of land to be defined by a single description extends from one into the
other of the coordinate zones specified in this section, the position of all points on its boundaries may
refer to either of the two zones. The zone which is being used specifically shall be named in the
description.
(g) (1) For purposes of more precisely defining the West Virginia Coordinate System of
1927, the following definition by the United States Coast and Geodetic Survey (now National Ocean
Service/National Geodetic Survey) is adopted:
The West Virginia Coordinate System of 1927 North Zone is a Lambert conformal conic
projection of the Clarke Spheriod of 1866, having standard parallels at north latitudes 39 degrees and
00 minutes and 40 degrees and 15 minutes, along which parallels the scale shall be exact. The origin
of coordinates is at the intersection of the meridian 79 degrees 30 minutes west of Greenwich and
the parallel 38 degrees 30 minutes north latitude. This origin is given the coordinates: x = 2,000,000
feet and y = 0 feet.
The West Virginia Coordinate System of 1927 South Zone is a Lambert conformal conic
projection of the Clarke Spheriod of 1866, having standard parallels at north latitudes 37 degrees 29
minutes and 38 degrees 53 minutes, along which parallels the scale shall be exact. The origin of
coordinates is at the intersection of the meridian 81 degrees 00 minutes west of Greenwich and the
parallel 37 degrees 00 minutes north latitude. This origin is given the coordinates: x = 2,000,000
feet and y = 0 feet.
(2) For purposes of more precisely defining the West Virginia Coordinate System of 1983,
the following definition by the National Ocean Service/National Geodetic Survey is adopted:
The West Virginia Coordinate System of 1983 North Zone is a Lambert conformal conic projection of the North American Datum of 1983, having standard parallels at north latitudes 39
degrees and 00 minutes and 40 degrees and 15 minutes, along which parallels the scale shall be
exact. The origin of coordinates is at the intersection of the meridian 79 degrees 30 minutes west
of Greenwich and the parallel 38 degrees 30 minutes north latitude. This origin is given the
coordinates: x = 600,000 meters and y = 0 meters.
The West Virginia Coordinate System of 1983 South Zone is a Lambert conformal conic
projection of the North American Datum of 1983, having standard parallels at north latitudes 37
degrees 29 minutes and 38 degrees 53 minutes, along which parallels the scale shall be exact. The
origin of coordinates is at the intersection of the meridian 81 degrees 00 minutes west of Greenwich
and the parallel 37 degrees 00 minutes north latitude. This origin is given the coordinates: x =
600,000 meters and y = 0 meters.
(h) No coordinates based on the West Virginia Coordinate System, purporting to define the
position of a point on a land boundary, may be presented to be recorded in any public records or deed
records unless the point is based on a public or private monumented horizontal control station
established in conformity with the standards of accuracy and specifications for first order or better
geodetic surveying as prepared and published by the Federal Geodetic Control Committee of the
United States Department of Commerce. Standards and specifications of the Federal Geodetic
Control Committee or its successor in force on the date of the survey apply. The publishing of the
existing control stations, or the acceptance with intent to publish the newly established control
stations, by the National Ocean Service/National Geodetic Survey is evidence of adherence to the
Federal Geodetic Control Committee specifications. The limitations specified in this section may
be modified by a duly authorized state agency to meet local conditions.
(i) The use of the term 'West Virginia Coordinate System of 1927 North or South Zone' or
'West Virginia Coordinate System of 1983 North or South Zone' on any map, report or survey or
other document shall be limited to coordinates based on the West Virginia Coordinate System as
defined in this section.
(j) A plat and a description of survey must show the basis of control identified by the
following:
(1) The monument name or the point identifier on which the survey is based;
(2) The order of accuracy of the base monument; and
(3) The coordinate values used to compute the corner positions.
(k) Nothing in this section prevents the recordation in any public record of any deed, map,
plat, survey, description or of any other document or writing of whatever nature which would
otherwise constitute a recordable instrument or document even though the same is not based upon
or done in conformity with the West Virginia Coordinate System established by this section, nor
does nonconformity with the system invalidate any deed, map, plat, survey, description or other
document which is otherwise proper.
(l) For purpose of this section a foot equals a United States Survey foot. The associated
factor of one meter equals 39.37/12 feet shall be used in any conversion necessitated by changing
values from meters to feet.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 2. COUNTY AND DISTRICT BOUNDARIES; CHANGE OF COUNTY SEAT
AND NAMES OF UNINCORPORATED TOWNS AND OF DISTRICTS;
COUNTY SURVEYOR.
§7-2-8. License required for county surveyor.
Each county surveyor of lands first elected or first appointed after January 1, 2013, pursuant
to section 1, article IX of the West Virginia Constitution, shall be a surveyor licensed pursuant to
article thirteen-a, chapter thirty of this code and such licensee shall be in good standing.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 13A. LAND SURVEYORS.
§30-13A-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice surveying in this state without
a license issued under the provisions of this article, or advertise or use any title or description tending
to convey the impression that they are a surveyor, unless such person has been licensed under the
provisions of this article.
(b) It is unlawful for any firm to practice or offer to practice surveying in this state without
a certificate of authorization issued under the provisions of this article, or advertise or use any title
or description tending to convey the impression that it is a surveying firm, unless such firm has been
issued a certificate of authorization under the provisions of this article.
§30-13A-2. Applicable law.
The practice of surveying and the West Virginia Board of Professional Surveyors are subject
to the provisions of article one of this chapter, the provisions of this article and the board's rules.
§30-13A-3. Definitions.
As used in this article, the following words and terms have the following meanings:
(a) 'Applicant' means a person making application for a license or a firm making application
for a certificate of authorization, under the provisions of this article.
(b) 'Board' means the West Virginia Board of Professional Surveyors.
(c) 'Boundary survey' means a survey, in which property lines and corners of a parcel of land
have been established by a survey and a description of survey has been written and a plat has been
prepared for the property.
(d)'Cadastral survey' means a survey representing the ownership, relative positions and
dimensions of land, objects and estates.
(e) 'Certificate holder' means a firm holding a certificate of authorization issued by the board.
(f) 'Certificate of authorization' means a certificate issued under the provisions of this article
to a firm providing surveying services.
(g) 'Construction survey' means the laying of stakes for a construction project.
(h) 'Direct supervision' means the responsible licensee is in direct control of all field and
office surveying operations. Direct control does not necessarily require the actual physical presence
of the responsible licensee at the site of the survey, nor prohibit the responsible licensee from
maintaining simultaneous direct supervision of more than one survey.
(i) 'Endorsee' means a person holding an endorsement to practice in a specialized field of
surveying issued by the board under the provisions of this article.
(j) 'Endorsement' means an authorization, in addition to a professional surveyor license, to
practice in a specialized field of surveying issued by the board.
(k) 'Firm' means any nongovernmental business entity, including an individual, association,
partnership or corporation, providing surveying services.
(l)'Geodetic control survey' means a survey involving the precise measurement of points on
the earth's surface which form the framework or control for a large map or project.
(m) 'Geographic information system (GIS)' means a system of hardware, software and
procedures designed to support the capture and management of spatially referenced information.
(n) 'Hydrographic survey' means a survey that measures and determines the topographic
features of water bodies and the adjacent land areas, including the width, depth and course of water
bodies and other relative features.
(o) 'Inactive' means the status granted by the board to a licensee or endorsee.
(p) 'Land information system (LIS)' means a system of hardware, software and procedures
designed to support the capture and management of spatially referenced information.
(q) 'License' means a surveying license issued under the provisions of this article.
(r) 'Licensee' means a person holding a surveying license issued under the provisions of this
article.
(s) 'Metes and bounds' means a description where the land or the associated effects on the
land have been measured by starting at a known point and describing, in sequence, the lines by
direction and distance forming the boundaries of the land or a defined area relative to the physical
land features, associated effects or structural improvements on the land.
(t) 'Monument' means a permanent marker, either boundary or nonboundary, used to
establish corners or mark boundary lines of a parcel of land or reference the geospatial relationship
of other objects.
(u) 'Mortgage/loan inspection survey' means a survey in which property lines and corners
have not been established.
(v) 'Oil or gas well survey' means a survey and plat of a proposed oil or gas well, including
the location of the well, the surface or mineral tract on which the well is located, the physical features surrounding the well, all creeks or streams near the well and any other identifying
characteristics of the land to specify the location of the well. An oil or gas well survey must be
performed in accordance with other provisions of this code affecting oil and gas well surveys.
(w) 'Partition survey' means a survey where the boundary lines of a newly created parcel of
land are established and the new corners are monumented.
(x) 'Photogrammetry' means the use of aerial photography, other imagery and surveying
principles to prepare scaled maps or other survey products reflecting the contours, features and fixed
works of the earth's surface.
(y) 'Practice of surveying' means providing professional surveying services, including
consulting, investigating, expert testimony, evaluating, planning, mapping and surveying.
(z) 'Responsible charge' means direct control of surveying work under the direct supervision
of a licensee or person authorized in another state or country to engage in the practice of surveying.
(aa) 'Retracement survey' means a survey where the boundary lines and corners of a parcel
of land are reestablished from an existing legal or deed description.
(bb) 'Strip' means a description of an area by reference to an alignment, usually a right-of-
way or an easement, stating the number of feet on each side of the alignment, the relative position
of the alignment, a reference to the measurements and monuments where the alignment crosses a
parcel of land and the source of title for each parcel of land the alignment crosses.
(cc) 'Subdivision' means the division of a lot, tract or parcel of land into two or more lots,
tracts or parcels of land.
(dd) 'Surface mine survey' means a survey of the surface mine permit area, including the
location of the surface mine, the surface or mineral tracts on which the surface mine is located, the physical features surrounding the surface mine, all creeks or streams near the surface mine and any
other identifying characteristics of the land to specify the location of the surface mine permit area.
A surface mine survey must be performed in accordance with other provisions of this code affecting
surface mine surveys.
(ee) 'Survey' or 'land survey' means to measure a parcel of land and ascertain its boundaries,
corners and contents or make any other authoritative measurements.
(ff) 'Surveying' or 'land surveying' means providing, or offering to provide, professional
services using such sciences as mathematics, geodesy, and photogrammetry, and involving both:
(1) The making of geometric measurements and gathering related information pertaining to
the physical or legal features of the earth, improvements on the earth, the space above, on or below
the earth; and
(2) Providing, utilizing or developing the same into survey products such as graphics, data,
maps, plans, reports, descriptions or projects. Professional services include acts of consultation,
investigation, testimony evaluation, expert technical testimony, planning, mapping, assembling and
interpreting gathered measurements and information related to any one or more of the following:
(A) Determining by measurement the configuration or contour of the earth's surface or the
position of fixed objects thereon.
(B) Determining by performing geodetic surveys the size and shape of the earth or the
position of any point on the earth.
(C) Determining the position for any survey control monument or reference point.
(D) Creating, preparing or modifying electronic, computerized or other data relative to the
performance of the activities in the above-described paragraphs (A) through (C), inclusive, of this subdivision.
(E) Locating, relocating, establishing, reestablishing or retracing property lines or boundaries
of any tract of land, road, right-of-way or easement.
(F) Making any survey for the division, subdivision, or consolidation of any tract or tracts
of land.
(G) Locating or laying out alignments, positions or elevations for the construction of fixed
works.
(H) Determining, by the use of principles of surveying, the position for any boundary or
nonboundary survey monument or reference point, or establishing or replacing any such monument
or reference point.
(I) Creating, preparing or modifying electronic or computerized or other data relative to the
performance of the activities in the above-described paragraphs (E) through (H), inclusive, of this
subdivision.
(3) Any person who engages in surveying, who by verbal claim, sign, advertisement,
letterhead, card or in any other way represents themselves to be a professional surveyor, or who
implies through the use of some other title that they are able to perform, or who does perform, any
surveying service or work or any other service designated by the practitioner which is recognized as
surveying, is practicing, or offering to practice, surveying within the meaning and intent of this
article.
(gg) 'Surveyor', 'professional surveyor' or 'land surveyor' means a person licensed to
practice surveying under the provisions of this article.
(hh) 'Surveyor, retired', 'professional surveyor, retired' or 'land surveyor, retired' means a licensed surveyor no longer practicing surveying, who has chosen to retire and has been granted the
honorific title of 'Professional Surveyor, Retired'.
(ii) 'Surveyor-in-charge' means a licensee designated by a firm to oversee the surveying
activities and practices of the firm.
(jj) 'Surveyor intern' means a person who has passed an examination covering the
fundamentals of land surveying.
(kk) 'Underground survey' means a survey that includes the measurement of underground
mine workings and surface features relevant to the underground mine, the placing of survey points
(spads) for mining direction, the performance of horizontal and vertical control surveys to determine
the contours of a mine, the horizontal and vertical location of mine features, and the preparation of
maps, reports and documents, including mine progress maps and mine ventilation maps. An
underground mine survey must be performed in accordance with other provisions of this code
affecting underground mine surveys.
§30-13A-4. Board of Professional Surveyors.
(a)The 'West Virginia Board of Professional Surveyors' is continued. Any member of
the board, except the endorsed underground surveyor member, in office on July 1, 2010, may
continue to serve until his or her successor has been appointed and qualified.
(b) Prior to July 1, 2010, the Governor, by and with the advice and consent of the Senate,
shall appoint one licensed professional surveyor with at least ten years of experience in land
surveying to replace the endorsed underground surveyor.
(c) Commencing July 1, 2010, the board shall consist of the following five members with
staggered terms:
(1) Three licensed professional surveyors with at least ten years of experience in land
surveying;
(2) One person who has a license in another field of practice other than surveying and also
who has a surveyor license by examination and has practiced surveying for at least ten years; and
(3) One citizen member who is not regulated under the provisions of this article and does not
perform any services related to the practice of surveying under the provisions of this article.
(d) Each licensed member of the board, at the time of his or her appointment, must have held
a license in this state for a period of not less than three years immediately preceding the appointment.
(e) Each member must be appointed by the Governor, by and with the advice and consent of
the Senate, and must be a resident of this state during the appointment term.
(f) The term of each board member is four years.
(g) No member may serve more than two consecutive full terms and any member having
served two full terms may not be appointed for one year after completion of his or her second full
term. A member shall continue to serve until his or her successor has been appointed and qualified.
(h) The Governor may remove any member from the board for neglect of duty, incompetency
or official misconduct.
(i) A licensed member of the board immediately and automatically forfeits membership to
the board if his or her license to practice is suspended or revoked.
(j) A member of the board immediately and automatically forfeits membership to the board
if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of
this state.
(k) The board shall designate one of its members as chairperson and one member as secretary-treasurer.
(l) Each member of the board is entitled to receive compensation and expense reimbursement
in accordance with section eleven, article one of this chapter.
(m) A majority of the members of the board shall constitute a quorum.
(n) The board shall hold at least one annual meeting. Other meetings shall be held at the call
of the chairperson, or upon the written request of two members, at such time and place as designated
in the call or request.
§30-13A-5. Powers and duties of the board.
The board has all the powers and duties set forth in article one of this chapter and also the
following powers and duties:
(1) Hold meetings, conduct hearings and administer examinations and reexaminations;
(2) Set the requirements for a license, endorsement, surveyor-in-charge and certificate of
authorization;
(3) Establish qualifications for licensure and procedures for submitting, approving and
disapproving applications for a license, endorsement and certificate of authorization;
(4) Examine the qualifications of any applicant for a license and endorsement;
(5) Prepare, conduct, administer and grade examinations and reexaminations required under
the provisions of this article;
(6) Determine the passing grade for the examinations and reexaminations required under the
provisions of this article;
(7) Administer, or contract with third parties to administer, the examinations and
reexaminations required under the provisions of this article;
(8) Maintain records of the examinations and reexaminations the board or a third party
administers, including the number of persons taking the examination or reexamination and the pass
and fail rate;
(9) Maintain an accurate registry of names and addresses of all licensees and endorsees;
(10) Maintain an accurate registry of names and addresses of firms holding a certificate of
authorization;
(11) Establish the standards for surveys;
(12) Define the fees charged under the provisions of this article;
(13) Issue, renew, deny, suspend, revoke or reinstate licenses and endorsements, and
discipline such persons;
(14) Issue, renew, deny, suspend, revoke or reinstate certificates of authorization and
discipline such firms;
(15) Establish and implement the continuing education requirements for licensees and
endorsees;
(16) Sue and be sued in its official name as an agency of this state;
(17) Hire, set the job requirements for, fix the compensation of and discharge investigators
and the employees necessary to enforce the provisions of this article;
(18) Investigate alleged violations of the provisions of this article, the rules promulgated
hereunder, and orders and final decisions of the board;
(19) Conduct hearings upon charges calling for discipline of a licensee, endorsee or
certificate holder, or revocation or suspension of a license, endorsement or certificate of
authorization;
(20) Set disciplinary action and issue orders;
(21) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a
of this code to implement the provisions of this article; and
(22) Take all other actions necessary and proper to effectuate the purposes of this article.
§30-13A-6. Rule-making authority.
(a) The board shall propose rules for legislative approval in accordance with the provisions
of article three, chapter twenty-nine-a of this code to implement the provisions of this article,
including:
(1) Setting the standards and requirements for licensure, endorsement, surveyor-in-charge
and certificate of authorization;
(2) Setting the procedure for examinations and reexaminations;
(3) Establishing requirements for third parties to administer examinations and
reexaminations;
(4) Establishing procedures for the issuance and renewal of a license, endorsement and
certificate of authorization;
(5) Setting a schedule of fees;
(6) Establishing and implementing requirements for continuing education for licensees and
endorsees;
(7) Evaluating the curriculum, experience and the instructional hours required for a license
and endorsement;
(8) Denying, suspending, revoking, reinstating or limiting the practice of a licensee, endorsee
or certificate holder;
(9) Establishing electronic signature requirements;
(10) Establishing minimum standards for surveys;
(11) Establishing a process to record plats;
(12) Establishing seal and document certification standards; and
(13) Proposing any other rules or taking other action necessary to effectuate the provisions
of this article.
(b) All rules in effect on July 1, 2010, shall remain in effect until they are amended, modified,
repealed or replaced.
§30-13A-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be
deposited in a separate special revenue fund in the State Treasury designated the 'Board of
Professional Surveyors Fund' which fund is continued. The fund shall be used by the board for the
administration of this article. Except as may be provided in section eleven, article one of this
chapter, the board shall retain the amounts in the special revenue fund from year to year. No
compensation or expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amounts received as fines imposed pursuant to this article shall be deposited into the
General Revenue Fund of the State Treasury.
§30-13A-8. Education, experience and examination requirements for a surveying license.
(a) Before a person may apply for a surveying license, the person must have completed one
of the following educational, experience and examination requirements:
(1) Has a four-year degree or a bachelor degree in surveying approved by the board, which
degree must include a minimum of thirty hours of surveying or surveying-related courses, has passed an examination in the fundamentals of land surveying, has two years or more of experience in
surveying in responsible charge, has passed an examination in the principles and practice of land
surveying and has passed the West Virginia examination;
(2) Has a four-year degree or a bachelor degree, has completed a minimum of thirty hours
of surveying or surveying-related courses, has passed an examination in the fundamentals of land
surveying, has four years or more of experience in surveying, including two years of experience in
responsible charge under the direct supervision of a licensee or a person authorized in another
jurisdiction to engage in the practice of surveying, has passed an examination in the principles and
practice of land surveying and has passed the West Virginia examination; or
(3) Has a two-year degree or an associate degree in surveying or a related field approved by
the board, which degree must include a minimum of thirty hours of surveying or surveying-related
courses, has passed an examination in the fundamentals of land surveying, has four years or more
of experience in surveying, including two years of experience in responsible charge under the direct
supervision of a licensee or a person authorized in another state or country to engage in the practice
of surveying, has passed an examination in the principles and practice of land surveying and has
passed the West Virginia examination.
(b) A person graduating from a two-year or four-year approved surveying degree program
with a grade point average of 3.0 or higher is permitted to take the examination in the fundamentals
of land surveying during his or her final semester.
(c) A person must pass the examination in the fundamentals of land surveying and complete
the work experience before he or she is allowed to take the examination in the principles and practice
of land surveying and the West Virginia examination.
(d) The examination in the fundamentals of land surveying, the examination in the principles
and practice of land surveying and the West Virginia examination shall each be held at least once
each year at the time and place determined by the board. A person who fails to pass all or any part
of an examination may apply for reexamination, as prescribed by the board, and shall furnish
additional information and fees as required by the board.
(e) A person who began the education, experience or examination requirements and were
approved by the board prior to December 31, 2004, have until December 31, 2012, to complete such
requirements for licensure.
§30-13A-9. Surveying license requirements.
(a) The board shall issue a surveying license to an applicant who meets the following
requirements:
(1) Is of good moral character;
(2) Is at least eighteen years of age;
(3) Is a citizen of the United States or is eligible for employment in the United States;
(4) Holds a high school diploma or its equivalent;
(5) Has not been convicted of a crime involving moral turpitude; and
(6) Has completed all of one of the education, experience and examination requirements set
out in section eight of this article.
(b) An application for a surveying license shall be made on forms provided by the board and
include the following:
(1) Name and address of the applicant;
(2) Applicant's education and experience;
(3) Location and date of passage of all the examinations;
(4) Names of five persons for reference, at least three of whom shall be licensees or persons
authorized in another jurisdiction to engage in the practice of surveying, and who have knowledge
of the applicant's work; and
(5) Any other information the board prescribes.
(c) An applicant shall pay all the applicable fees.
(d) A license to practice surveying issued by the board prior to July 1, 2010, shall for all
purposes be considered a license issued under this article:
Provided, That a person holding a license
to practice surveying issued by the board prior to July 1, 2010, must renew the license pursuant to
the provisions of this article.
§30-13A-10. Scope of Practice.
(a) A licensee may measure a parcel of land and ascertain its boundaries, corners and contents
or make any other authoritative measurements. The practice of surveying can be any of the
following, but not limited to:
(1) The performance of a boundary, cadastral, construction, geodetic control, hydrographic,
land, mortgage/loan inspection, oil or gas well, partition, photogrammetry, retracement, subdivision
or surface mine survey; or
(2) The location, relocation, establishment, reestablishment, laying out or retracement of any
property line or boundary of any parcel of land or of any road or utility right-of-way, easement, strip
or alignment or elevation of any fixed works by a licensed surveyor.
(b) Activities that must be performed under the responsible charge of a professional surveyor,
unless specifically exempted in subsection (c) of this section, include, but are not limited to, the following:
(1) The creation of maps and georeferenced databases representing authoritative locations
for boundaries, the location of fixed works, or topography;
(2) Maps and georeferenced databases prepared by any person, firm, or government agency
where that data is provided to the public as a survey product;
(3) Original data acquisition, or the resolution of conflicts between multiple data sources,
when used for the authoritative location of features within the following data themes: geodetic
control, orthoimagery, elevation and hydrographic, fixed works, private and public boundaries, and
cadastral information;
(4) Certification of positional accuracy of maps or measured survey data;
(5) Adjustment or authoritative interpretation of raw survey data;
(6) Geographic Information System (GIS) - based parcel or cadastral mapping used for
authoritative boundary definition purposes wherein land title or development rights for individual
parcels are, or may be, affected;
(7) Authoritative interpretation of maps, deeds, or other land title documents to resolve
conflicting data elements;
(8) Acquisition of field data required to authoritatively position fixed works or cadastral data
relative to geodetic control; and
(9) Analysis, adjustment or transformation of cadastral data of the parcel layer(s) with respect
to the geodetic control layer within a GIS resulting in the affirmation of positional accuracy.
(c) The following items are not included as activities within the practice of surveying:
(1) The creation of general maps:
(A) Prepared by private firms or government agencies for use as guides to motorists, boaters,
aviators, or pedestrians;
(B) Prepared for publication in a gazetteer or atlas as an educational tool or reference
publication;
(C) Prepared for or by education institutions for use in the curriculum of any course of study;
(D) Produced by any electronic or print media firm as an illustrative guide to the geographic
location of any event; or
(E) Prepared by laypersons for conversational or illustrative purposes. This includes
advertising material and users guides.
(2) The transcription of previously georeferenced data into a GIS or LIS by manual or
electronic means, and the maintenance thereof, provided the data are clearly not intended to indicate
the
authoritative location of property boundaries, the precise definition of the shape or contour of the
earth, and/or the precise location of fixed works of humans.
(3) The transcription of public record data, without modification except for graphical
purposes, into a GIS- or LIS-based cadastre (tax maps and associated records) by manual or
electronic means, and the maintenance of that cadastre, provided the data are clearly not intended
to authoritatively represent property boundaries. This includes tax maps and zoning maps.
(4) The preparation of any document by any federal government agency that does not define
real property boundaries. This includes civilian and military versions of quadrangle topographic
maps, military maps, satellite imagery, and other such documents.
(5) The incorporation or use of documents or databases prepared by any federal agency into a GIS/LIS, including but not limited to federal census and demographic data, quadrangle topographic
maps, and military maps.
(6) Inventory maps and databases created by any organization, in either hard-copy or
electronic form, of physical features, facilities, or infrastructure that are wholly contained within
properties to which they have rights or for which they have management responsibility. The
distribution of these maps and/or databases outside the organization must contain appropriate
metadata describing, at a minimum, the accuracy, method of compilation, data source(s) and date(s),
and disclaimers of use clearly indicating that the data are not intended to be used as a survey product.
(7) Maps and databases depicting the distribution of natural resources or phenomena prepared
by foresters, geologists, soil scientists, geophysicists, biologists, archeologists, historians, or other
persons qualified to document such data.
(8) Maps and georeferenced databases depicting physical features and events prepared by any
government agency where the access to that data is restricted by statute. This includes georeferenced
data generated by law enforcement agencies involving crime statistics and criminal activities.
§30-13A-11. Exemptions from licensing.
(a) The following persons are exempt from licensure under the provisions of this article:
(1) Any employee of a person or firm, when such employee is engaged in the practice of land
surveying exclusively for the person or firm, by which employed, or, if a corporation, its parents,
affiliates or subsidiaries, and such person, firm, association or corporation does not hold himself,
herself or itself out to the public as being engaged in the business of land surveying.
(2) Any employee or officer of the United States, this state or any political subdivision
thereof, or their agents, when such employee is engaged in the practice of land surveying exclusively for such governmental unit:
Provided, That each county surveyor of lands first elected or first
appointed after January 1, 2013, pursuant to section 1, article IX of the West Virginia Constitution,
shall be a surveyor licensed pursuant to the provisions of this article and such licensee shall be in
good standing.
(b) The minimum standards for surveys, established by the board, apply notwithstanding the
exemptions provided by this section.
§30-13A-12. Surveyor intern requirements.
(a) To be recognized as a surveyor intern by the board, a person must meet the following
requirements:
(1) Is of good moral character;
(2) Is at least eighteen years of age;
(3) Is a citizen of the United States or is eligible for employment in the United States;
(4) Holds a high school diploma or its equivalent;
(5) Has not been convicted of a crime involving moral turpitude;
(6) Has completed one of the education requirements set out in section eight of this article;
and
(7) Has passed an examination in the fundamentals of land surveying.
(b) A surveyor intern must pass the principles and practice of land surveying examination and
the West Virginia examination within ten years of passing the fundamentals of land surveying
examination. If the examinations are not passed within ten years, then the surveyor intern must
retake the fundamentals of land surveying examination.
§30-13A-13. License
from another state.
The board may issue a license to practice surveying in this state to an applicant of good moral
character who holds a valid license or other authorization to practice surveying from another state
if the applicant demonstrates that:
(1) He or she or she holds a license or other authorization to practice surveying in another
state which was granted after completion of educational, experience and examinations requirements
substantially equivalent to those required in this state;
(2) He or she is not currently being investigated by a disciplinary authority of another state,
does not have charges pending against his or her license or other authorization to practice surveying
and has never had a license or other authorization to practice surveying revoked;
(3) He or she has not previously failed an examination for licensure in this state;
(4) He or she has paid all the applicable fees; and
(5) Has completed such other action as required by the board.
§30-13A-14. License, endorsement and certificate of authorization renewal requirements.
(a) A licensee or endorsee wanting to continue in active practice shall, annually or biennially,
on or before July 1, renew his or her license or endorsement and pay a renewal fee.
(b) A certificate holder wanting to continue in active practice shall, annually or biennially,
on or before January 1, renew the certificate and pay a renewal fee.
(c) The board shall charge a fee for each a renewal and a late fee for any renewal not paid by
the due date.
(d) The board shall require as a condition of renewal that each licensee or endorsee complete
continuing education.
(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license, endorsement or certificate of authorization.
(f) The board may authorize the waiving of the renewal fee of a licensee or endorsee during
the period when he or she is on active duty with any branch of the armed services.
§30-13A-15. Inactive license requirements.
(a) A licensee who does not want to continue in active practice shall notify the board in
writing and be granted inactive status.
(b) A person granted inactive status shall pay an inactive fee and is exempt from the
continuing education requirements and cannot practice in this state.
(c) When an inactive licensee wants to return to active practice, he or she must complete all
the continuing education requirements and pay all the applicable fees as determined by the board.
§30-13A-16. Delinquent and expired license requirements.
(a) If a license is not renewed when due, then the board shall automatically place the licensee
on delinquent status.
(b) The fee for a person on delinquent status shall increase at a rate, determined by the board,
for each month or fraction thereof that the renewal fee is not paid, up to a maximum of thirty-six
months.
(c) Within thirty-six months of being placed on delinquent status, if a licensee wants to return
to active practice, he or she must complete all the continuing education requirements and pay all the
applicable fees as determined by the board.
(d) After thirty-six months of being placed on delinquent status, a license is automatically
placed on expired status and cannot be renewed. A person whose license has expired must reapply
for a new license.
§30-13A-17. Retired license requirements.
(a) A licensee who does not want to continue practicing surveying and who has chosen to
retire shall notify the board in writing and may be granted retired status.
(b) A person granted retired status shall be given the honorific title of 'Professional Surveyor,
Retired' and cannot practice in this state.
§30-13A-18. Requirements for when a person fails an examination.
(a) Any person failing any of the examinations for surveying is not permitted to work as a
licensed surveyor under the provisions of this article until the person has passed all the examinations.
(b) A person failing the fundamentals of land surveying examination may still gain
experience as required in section eight of this article until he or she passes the examination.
(c) A person who has passed the fundamentals of land surveying examination, but failed the
principles and practice examination or West Virginia examination may only work as a surveyor
intern under the direct supervision of a licensee or a person authorized in another jurisdiction to
engage in the practice of surveying until he or she passes all of the examinations.
§30-13A-19. Display of license, endorsement and certificate of authorization.
(a) The board shall prescribe the form for a license, endorsement and certificate of
authorization and may issue a duplicate license, endorsement and certificate of authorization upon
payment of a fee.
(b) A licensee, endorsee and certificate holder shall conspicuously display his or her license,
endorsement or certificate of authorization at his or her principal place of practice.
§30-13A-20. Certificate of authorization requirements.
(a) Each firm practicing surveying in West Virginia shall have a certificate of authorization.
(b) The board shall issue a certificate of authorization to a firm that:
(1) Practices surveying in West Virginia;
(2) Provides proof that the firm has employed a surveyor-in-charge;
(3) Has paid all applicable fees; and
(4) Completes such other requirements as specified by the board.
§30-13A-21. Surveyor-in-charge requirements.
(a) A firm practicing surveying must operate all surveying activities under the supervision
and management of a surveyor-in-charge who shall be a licensee who is licensed in this state.
(b) The designated surveyor-in-charge is responsible for the surveying work in this state
provided by the firm.
(c) A licensee cannot be designated as a surveyor-in-charge for more than one firm without
approval of the board.
(d) A licensee who performs part-time or consulting surveying services for a firm cannot be
designated as a surveyor-in-charge for that firm unless the licensee is an officer, a majority interest
holder or owner of the firm.
(e) The responsibilities of a surveyor-in-charge include:
(1) Renewal of the certificate of authorization;
(2) Notification to the board of any change in the surveyor-in-charge;
(3) Supervising the firm's employees, including licensees, and other personnel providing
surveying services in this state; and
(4) Ensuring that the policies of the firm adhere to the provisions of this article.
(f) The board may authorize a licensee to supervise the work of an individual that is not an employee of the licensee, nor is employed by the same firm as the licensee. The potential supervisor
must apply to the board for this authorization.
§30-13A-22. Complaints; investigations; due process procedure; grounds for disciplinary
action.
(a) The board may upon its own motion based on credible information, and shall upon the
written complaint of any person, cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the
complaint to the licensee or certificate holder.
(c) After reviewing any information obtained through an investigation, the board shall
determine if probable cause exists that the licensee or certificate holder has violated this article.
(d) Upon a finding that probable cause exists that the licensee or certificate holder has
violated this article, the board may enter into a consent decree or hold a hearing for the suspension
or revocation of the license or certificate of authorization or the imposition of sanctions against the
licensee or certificate holder. Any hearing shall be held in accordance with the provisions of this
article.
(e) Any member of the board or the executive secretary of the board may issue subpoenas and
subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations
against any person regulated by the article.
(f) Any member of the board or its executive secretary may sign a consent decree or other
legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict or revoke the license or certificate of authorization of, or impose probationary conditions
upon or take disciplinary action against, any licensee or certificate holder for any of the following
reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license or certificate of authorization by fraud, misrepresentation or
concealment of material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk;
(4) Intentional violation of a lawful order or legislative rule of the board;
(5) Having had a license or other authorization to practice revoked or suspended, or other
disciplinary action taken by the proper authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity which has endangered or is
likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Restrictions;
(4) Administrative fine, not to exceed $1,000 per day per violation;
(5) Mandatory attendance at continuing education seminars or other training;
(6) Practicing under supervision or other restriction; or
(7) Requiring the licensee or certificate holder to report to the board for periodic interviews
for a specified period of time.
(i) In addition to any other sanction imposed, the board may require a licensee or certificate
holder to pay the costs of the proceeding.
§30-13A-23. Procedures for hearing.
(a) Hearings are governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct
the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing
he or she shall prepare a proposed written order containing findings of fact and conclusions of law.
The proposed order may contain proposed disciplinary actions if the board so directs. The board
may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the authority to administer oaths,
examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee or certificate holder has violated
provisions of this article, a formal written decision shall be prepared which contains findings of fact,
conclusions of law and a specific description of the disciplinary actions imposed.
§30-13A-24. Judicial review.
Any licensee or certificate holder adversely affected by a decision of the board entered after
a hearing may obtain judicial review of the decision in accordance with section four, article five,
chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in
accordance with article six, chapter twenty-nine-a of this code.
§30-13A-25. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its
information to the attention of the appropriate law-enforcement officer who may cause appropriate
criminal proceedings to be brought.
(b) If a court of law finds that a person knowingly violated this article, any order of the board
or any final decision of the board, then the person is guilty of a misdemeanor and, upon conviction
thereof, shall be fined no less than one hundred dollars and no more than one thousand dollars for
each violation, confinement in a regional correctional facility for up to thirty days for each violation,
or both fined and confined.
CHAPTER 39. RECORDS AND PAPERS.
ARTICLE 1. AUTHENTICATION AND RECORD OF WRITINGS.
§39-1-2a. Other requirements for admission to record of certain instruments.
(a) In addition to the other requirements prescribed by law, no instrument by which the title
to real estate or personal property, or any interest therein or lien thereon, is conveyed, created,
encumbered, assigned or otherwise disposed of, shall be recorded or admitted to record, or filed by
the county clerk unless the name of the person who, and governmental agency, if any, which,
prepared such instrument appears at the conclusion of such instrument and such name is either
printed, typewritten, stamped, or signed in a legible manner:
Provided, That the recording or filing
of any instrument in violation of the provisions of this section shall not invalidate or cloud the title
passing by or under such instrument or affect the validity of such instrument in any respect whatever,
and such recorded or filed instrument shall constitute notice with like effect as if such instrument
fully complied with the provisions of this section. An instrument will be in compliance with this
section if it contains a statement in the following form: 'This instrument was prepared by (name)'.
(b) This section does not apply to any instrument executed prior to the effective date hereof;
to any decree, order, judgment or writ of any court; to any will or death certificate; to any financing,
continuation or termination statement permitted to be filed under chapter forty-six of this code; or
to any instrument executed or acknowledged outside of this state.
(c) A survey document intended to be used in the transfer of real property, prepared by a
licensed surveyor, and filed with a county clerk or accepted by a public official of this state shall
have the licensed surveyor's signature and seal or stamp affixed thereto.
(d) If a survey document, prepared by a licensed surveyor, has been altered from its original
form, it shall not be filed with a county clerk or accepted by a public official of this state, until the
original licensed surveyor has initialed the changes.
(e) A document, plan, map, drawing, exhibit, sketch or pictorial representation prepared by
a person exempted under the provisions of thirteen-a, chapter thirty of this code, is not required to
have the signature and seal affixed thereto.
(f) A document, plan, map, drawing, exhibit, sketch or pictorial representation altered by a
person not licensed under the provisions of article thirteen-a, chapter thirty of this code, shall have
the alteration initialed by a surveyor licensed under the provisions of article thirteen-a, chapter thirty
of this code."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 296), and there were--yeas
96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Cann and Fleischauer.
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. 4450) 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. 4524, Revising the definition of "all-terrain vehicle" and including a definition for
utility terrain vehicle.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page thirty, section one, line two hundred ninety, by striking out the words "or
snowmobile" and inserting in lieu thereof a comma and the words "snowmobile or utility vehicle".
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment
with amendment, as follows:
On page thirty, section one, line two hundred ninety, following the word "utility", by
inserting a hyphen and the word "terrain".
The bill, as amended by the Senate, and as 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. 297), 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: Argento and Cann.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4524) 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. 4589, Conforming article three of chapter three of the Code of West
Virginia, to the requirements of the Military and Overseas Voter Empowerment Act of 2009.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. VOTING BY ABSENTEES.
3-3-2. Authority to conduct absentee voting; absentee voting application; form.
(a) Absentee voting is to be supervised and conducted by the proper official for the political
division in which the election is held, in conjunction with the ballot commissioners appointed from
each political party, as follows:
(1) For any election held throughout the county, within a political subdivision or territory
other than a municipality, or within a municipality when the municipal election is conducted in
conjunction with a county election, the clerk of the county commission; or
(2) The municipal recorder or other officer authorized by charter or ordinance provisions to
conduct absentee voting, for any election held entirely within the municipality, or in the case of
annexation elections, within the area affected. The terms 'clerk' or 'clerk of the county commission'
or 'official designated to supervise and conduct absentee voting' used elsewhere in this article means
municipal recorder or other officer in the case of municipal elections.
(b) A person authorized and desiring to vote a mail-in absentee ballot in any primary, general
or special election is to make application in writing in the proper form to the proper official as
follows:
(1) The completed application is to be on a form prescribed by the Secretary of State and is
to contain the name, date of birth and political affiliation of the voter, residence address within the
county, the address to which the ballot is to be mailed, the authorized reason, if any, for which the
absentee ballot is requested and, if the reason is illness or hospitalization, the name and telephone
number of the attending physician, the signature of the voter to a declaration made under the
penalties for false swearing as provided in section three, article nine of this chapter that the
statements and declarations contained in the application are true, any additional information which
the voter is required to supply, any affidavit which may be required and an indication as to whether
it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under the provisions of 42 U.S.C.
§1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the completed
application may be on the federal postcard application for absentee ballot form issued under
authority of that act, submitted by mail or electronically; or
(3) For any person unable to obtain the official form for absentee balloting at a reasonable time before the deadline for an application for an absentee ballot by mail is to be received by the
proper official, the completed application may be in a form set out by the voter, provided all
information required to meet the provisions of this article is set forth and the application is signed
by the voter requesting the ballot.
§3-3-2b. Special absentee voting list.
(a) Any person who is registered and otherwise qualified to vote and who is permanently and
totally physically disabled and who is unable to vote in person at the polls in an election may apply
to the official designated to supervise and conduct absentee voting for placement on the special
absentee voting list.
(b) The application is to be on a form prescribed by the Secretary of State which is to include
the voter's name and signature, residence address, a statement that the voter is permanently and
totally physically disabled and would be unable to vote in person at the polls in any election, a
description of the nature of that disability, and a statement signed by a physician to that effect.
(c) Upon receipt of a properly completed application, the official designated to supervise and
conduct absentee voting shall enter the name on the special absentee voting list, which is to be
maintained in a secure and permanent record. The person's name will remain active on the list until:
(1) The person requests in writing that his or her name be removed; (2) the person removes his or
her residence from the county, is purged from the voter registration books or otherwise becomes
ineligible to vote; (3) a ballot mailed to the address provided on the application is returned
undeliverable by the United States postal service; or (4) the death of the person.
(d) The official designated to supervise and conduct absentee voting shall mail an application
for an absentee ballot by mail to each person active on the special absentee voting list not later than forty-two forty-six days before each election.
§3-3-5. Voting an absentee ballot by mail or electronically; penalties.
(a) Upon oral or written request, the official designated to supervise and conduct absentee
voting shall provide to any voter of the county, in person, by mail, by electronic mail or by facsimile
or electronically the appropriate application for voting absentee by mail as provided in this article.
The voter shall complete and sign the application in his or her own handwriting or, if the voter is
unable to complete the application because of illiteracy or physical disability, the person assisting
the voter and witnessing the mark of the voter shall sign his or her name in the space provided.
(b) Completed applications for voting an absentee ballot by mail are to be accepted when
received by the official designated to supervise and conduct absentee voting in person, by mail, by
electronic mail or by facsimile or electronically within the following times:
(1) For persons eligible to vote an absentee ballot under the provisions of subdivision (3),
subsection (b), section one of this article, relating to absent uniformed services and overseas voters,
not earlier than January 1 of an election year or eighty-four days preceding the election, whichever
is earlier, and not later than the sixth day preceding the election, which application is to, upon the
voter's request, be accepted as an application for the ballots for all elections in the calendar year; and
(2) For all other persons eligible to vote an absentee ballot by mail, not earlier than eighty-
four days preceding the election and not later than the sixth day preceding the election.
(c) Upon acceptance of a completed application, the official designated to supervise and
conduct absentee voting shall determine whether the following requirements have been met:
(1) The application has been completed as required by law;
(2) The applicant is duly registered to vote in the precinct of his or her residence and, in a primary election, is qualified to vote the ballot of the political party requested;
(3) The applicant is authorized for the reasons given in the application to vote an absentee
ballot by mail;
(4) The address to which the ballot is to be mailed is an address outside the county if the
voter is applying to vote by mail under the provisions of paragraph (A) or (B), subdivision (2),
subsection (b), section one of this article; or subdivision (3) or (4) of said subsection;
(5) The applicant is not making his or her first vote after having registered by postcard
registration or, if the applicant is making his or her first vote after having registered by postcard
registration, the applicant is exempt from these requirements; and
(6) No regular and repeated pattern of applications for an absentee ballot by mail for the
reason of being out of the county during the entire period of voting in person exists to suggest that
the applicant is no longer a resident of the county.
(d) If the official designated to supervise and conduct absentee voting determines that the
required conditions have been met, two representatives that are registered to vote with different
political party affiliations shall sign their names in the places indicated on the back of the official
ballot. If the official designated to supervise and conduct absentee voting determines the required
conditions have not been met, or has evidence that any of the information contained in the
application is not true, the official shall give notice to the voter that the voter's absentee ballot will
be challenged as provided in this article and shall enter that challenge.
(e) (1) Within one day after the official designated to supervise and conduct absentee voting
has both the completed application and the ballot, the official shall mail to the voter at the address
given on the application the following items as required and as prescribed by the Secretary of State:
(A) One of each type of official absentee ballot the voter is eligible to vote, prepared
according to law;
(B) One envelope, unsealed, which may have no marks except the designation 'Absent
Voter's Ballot Envelope No. 1' and printed instructions to the voter;
(C) One postage paid envelope, unsealed, designated 'Absent Voter's Ballot Envelope No.
2';
(D) Instructions for voting absentee by mail;
(E) For electronic systems, a device for marking by electronically sensible pen or ink, as may
be appropriate;
(F) Notice that a list of write-in candidates is available upon request; and
(G) Any other supplies required for voting in the particular voting system.
(2) If the voter is an absent uniformed services voter or overseas voter, as defined by 42
U.S.C. §1973, et seq., the official designated to supervise and conduct absentee voting may
voluntarily upon request of the voter shall transmit the ballot to the voter via mail, facsimile or by
electronic mail or electronically as requested by the voter. If the voter does not designate a
preference for transmittal, the clerk may select either method of transmittal for the ballot. If the
ballot is transmitted by facsimile or by electronic mail electronically pursuant to this subdivision,
the official designated to supervise and conduct absentee voting shall also transmit via facsimile or
by electronic mail electronically:
(A) A waiver of privacy form, to be promulgated by the Secretary of State;
(B) Instructions for voting absentee utilizing the Federal Voting Assistance Program
Electronic Transmission System. For the purposes of this subsection, the 'Federal Voting Assistance Program Electronic Transmission System' is the system established by the Department of Defense
for the explicit purpose of sending and receiving absentee ballots by military and overseas United
States citizens a federally approved system for voting by mail or electronically;
(C) Notice that a list of write-in candidates is available upon request.; and
(D) Statement of the voter affirming the voter's current name and address and whether or not
he or she received assistance in voting.
The official designated to supervise and conduct absentee voting is not required to mail to
the voter the materials listed in paragraphs (B), (C) and (E), subdivision (1) of this subsection.
(f) The voter shall mark the ballot alone: Provided, That the voter may have assistance in
voting according to the provisions of section six of this article.
(1) After the voter has voted the ballot or ballots to be returned by mail, the voter shall:
(A) Place the ballot or ballots in envelope no. 1 and seal that envelope;
(B) Place the sealed envelope no. 1 in envelope no. 2 and seal that envelope;
(C) Complete and sign the forms on envelope no. 2; and
(D) Return that envelope to the official designated to supervise and conduct absentee voting.
(2) If the ballot was transmitted via facsimile or by electronic mail electronically as provided
in subdivision (2), subsection (e) of this section, the voter shall return the ballot in the same manner
the ballot was received, except that or the voter may return the ballot by United States mail, along
with a signed privacy waiver form.
(g) Except as provided in subsection (h) of this section, absentee ballots returned by United
States mail or other express shipping service are to be accepted if:
(1) The ballot is received by the official designated to supervise and conduct absentee voting no later than the day after the election; or
(2) The ballot bears a postmark of the United States Postal Service dated no later than
election day and the ballot is received by the official designated to supervise and conduct absentee
voting no later than the hour at which the board of canvassers convenes to begin the canvass.
(h) Absentee ballots received through the United States mail from persons eligible to vote
an absentee ballot under the provisions of subdivision (3), subsection (b), section one of this article,
relating to uniform services and overseas voters, are to be accepted if the ballot is received by the
official designated to supervise and conduct absentee voting no later than the hour at which the board
of canvassers convenes to begin the canvass.
(i) Ballots transmitted via facsimile or by electronic mail Voted ballots submitted
electronically pursuant to subdivision (2), subsection (f) of this section are to be accepted if the ballot
is received by the official designated to supervise and conduct absentee voting no later than the close
of polls on election day: Provided, That the Secretary of State's office shall enter into an agreement
with the Federal Voting Assistance Program of the United States Department of Defense to transmit
the ballots to the county clerks at a time when two individuals of opposite political parties are
available to process the received ballots.
(j) Ballots received after the proper time which cannot be accepted are to be placed unopened
in an envelope marked for the purpose and kept secure for twenty-two months following the election,
after which time they are to be destroyed without being opened.
(k) Absentee ballots which are hand delivered are to be accepted if they are received by the
official designated to supervise and conduct absentee voting no later than the day preceding the
election: Provided, That no person may hand deliver more than two absentee ballots in any election and any person hand delivering an absentee ballot is required to certify that he or she has not
examined or altered the ballot. Any person who makes a false certification violates the provisions
of article nine of this chapter and is subject to those provisions.
(l) Upon receipt of the sealed envelope, the official designated to supervise and conduct
absentee voting shall:
(1) Enter onto the envelope any other required information;
(2) Enter the challenge, if any, to the ballot;
(3) Enter the required information into the permanent record of persons applying for and
voting an absentee ballot in person; and
(4) Place the sealed envelope into a ballot box that is secured by two locks with a key to one
lock kept by the president of the county commission and a key to the other lock kept by the county
clerk.
(m) Upon receipt of a ballot submitted via facsimile or by electronic mail electronically
pursuant to subdivision (2), subsection (f) of this section, the official designated to supervise and
conduct absentee voting shall place the ballot in an envelope marked 'Absentee by Facsimile or by
Electronic Mail Electronic Means' with the completed waiver: Provided, That no ballots are to be
processed without the presence of two individuals of opposite political parties.
(n) All ballots received by facsimile or by electronic mail electronically prior to the close of
the polls on election day are to be tabulated in the manner prescribed for tabulating absentee ballots
submitted by mail to the extent that those procedures are appropriate for the applicable voting
system. The clerk of the county commission shall keep a record of absentee ballots sent and received
by facsimile or by electronic mail electronically.
§3-3-11. Preparation, number and handling of absent voters' ballots.
(a) Absent voters' ballots are to be in all respects like other ballots. Not less than seventy
days before the date on which any primary, general or special election is to be held, unless a lesser
number of days is provided in any specific election law in which case the lesser number of days
applies, the clerks of the county commissions of the several counties shall estimate and determine
the number of absent voters' ballots of all kinds which will be required in their respective counties
for that election. The ballots for the election of all officers, or the ratification, acceptance or
rejection of any measure, proposition or other public question to be voted on by the voters, are to be
prepared and printed under the direction of the board of ballot commissioners constituted as provided
in article one of this chapter. The several county boards of ballot commissioners shall prepare and
have printed, in the number they may determine, absent voters' ballots that are to be printed under
their directions as provided in this chapter and those ballots are to be delivered to the clerk of the
county commission of the county not less than forty-two forty-six days before the day of the election
at which they are to be used.
(b) The official designated to supervise and conduct absentee voting shall be responsible for
the mailing, transmitting, receiving, delivering and otherwise handling of all absent voters' ballots.
He or she shall keep a record, as may be prescribed by the Secretary of State, of all ballots delivered
for the purpose of absentee voting, as well as all ballots, if any, marked before him or her and shall
deliver to the commissioner of election a certificate stating the number of ballots delivered,
transmitted, or mailed to absent voters and those marked before him or her, if any, and the names
of the voters to whom those ballots have been delivered, transmitted, or mailed or by whom they
have been marked, if marked before him or her.
ARTICLE 4. VOTING MACHINES.
§3-4-10. Ballot labels, instructions and other supplies; vacancy changes; procedure and
requirements.
(a) The ballot commissioners of any county in which voting machines are to be used in any
election shall cause to be printed for use in the election the ballot labels for the voting machines and
paper ballots for absentee voting, voting by persons unable to use the voting machine and provisional
ballots or if an electronic voting system or direct recording election equipment is to be used in an
election, the ballot commissioners shall comply with requirements of section eleven, article four-a
of this chapter. The labels shall be clearly printed in black ink on clear white material in a size that
will fit the ballot frames. The paper ballots shall be printed in compliance with the provisions of this
chapter governing paper ballots.
(b) The heading, the names and arrangement of offices and the printing and arrangement of
names of the candidates for each office indicated must be placed on the ballot for the primary
election as nearly as possible according to the provisions of sections thirteen and thirteen-a, article
five of this chapter and for the general election according to the provisions of section two, article six
of this chapter: Provided, That the staggering of the names of candidates in multicandidate races and
the instructions to straight ticket voters prescribed by section two, article six of this chapter shall
appear on paper ballots but shall not appear on ballot labels for voting machines which mechanically
control crossover voting.
(c) Each question to be voted on must be placed at the end of the ballot and must be printed
according to the provisions of the laws and rules governing the question.
(d) The ballot labels printed must total in number one and one-half times the total number of corresponding voting machines to be used in the several precincts of the county in the election.
All the labels must be delivered to the clerk of the county commission at least twenty-eight days
prior to the day of the election. The clerk of the county commission shall determine the number of
paper ballots needed for absentee voting and to supply the precincts for provisional ballots and
ballots to be cast by persons unable to use the voting machine. All required paper ballots shall be
delivered to the clerk of the county commission at least forty-two forty-six days prior to the day of
the election.
(e) When the ballot labels and absentee ballots are delivered, the clerk of the county
commission shall examine them for accuracy, assure that the appropriate ballots and ballot labels are
designated for each voting precinct and insert one set in each machine prior to the inspection of the
machines as prescribed in section twelve of this article. The remainder of the ballot labels for each
machine shall be retained by the clerk of the county commission for use in an emergency.
(f) In addition to all other equipment and supplies required by the provisions of this article,
the ballot commissioners shall cause to be printed a supply of instruction cards, sample ballots and
facsimile diagrams of the voting machine ballot adequate for the orderly conduct of the election in
each precinct in their county. In addition, they shall provide appropriate facilities for the reception
and safekeeping of the ballots of absent voters and of challenged voters and of the 'independent'
voters who shall, in primary elections, cast their votes on nonpartisan candidates and public
questions submitted to the voters.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-13. Form and contents of ballots.
The face of every primary election ballot shall conform as nearly as practicable to that used at the general election.
(1) The heading of every ballot is to be printed in display type. The heading is to contain a
ballot title, the name of the county, the state, the words 'Primary Election' and the month, day and
year of the election. The ballot title of the political party ballots is to contain the words 'Official
Ballot of the (Name) Party' and the official symbol of the political party may be included in the
heading. The ballot title of any separate paper ballot or portion of any electronic or voting machine
ballot for the Board of Education is to contain the words 'Nonpartisan Ballot of Election of Members
of the ______________ County Board of Education'. The districts for which less than two
candidates may be elected and the number of available seats are to be specified and the names of the
candidates are to be printed without reference to political party affiliation and without designation
as to a particular term of office. Any other ballot or portion of a ballot on a question is to have a
heading which clearly states the purpose of the election according to the statutory requirements for
that question.
(2) (A) For paper ballots, the heading of the ballot is to be separated from the rest of the
ballot by heavy lines and the offices shall be arranged in columns with the following headings, from
left to right across the ballot: 'National Ticket', 'State Ticket', 'County Ticket' and, in a presidential
election year, 'National Convention' or, in a nonpresidential election year, 'District Ticket'. The
columns are to be separated by heavy lines. Within the columns, the offices are to be arranged in
the order prescribed in section thirteen-a of this article.
(B) For voting machines, electronic voting devices and any ballot tabulated by electronic
means, the offices are to appear in the same sequence as prescribed in section thirteen-a of this article
and under the same headings as prescribed in subsection (a) of this section. The number of pages, columns or rows, where applicable, may be modified to meet the limitations of ballot size and
composition requirements subject to approval by the Secretary of State.
(C) The title of each office is to be separated from preceding offices or candidates by a line
and is to be printed in bold type no smaller than eight point. Below the office is to be printed the
number of the district, if any, the number of the division, if any, and the words 'Vote for ________'
with the number to be nominated or elected or 'Vote For Not More Than ________' in
multicandidate elections. For offices in which there are limitations relating to the number of
candidates which may be nominated, elected or appointed to or hold office at one time from a
political subdivision within the district or county in which they are elected, there is to be a clear
explanation of the limitation, as prescribed by the Secretary of State, printed in bold type
immediately preceding the names of the candidates for those offices on the ballot in every voting
system. For counties in which the number of county commissioners exceeds three and the total
number of members of the county commission is equal to the number of magisterial districts within
the county, the office of county commission is to be listed separately for each district to be filled with
the name of the magisterial district and the words 'Vote for One' printed below the name of the
office: Provided, That the office title and applicable instructions may span the width of the ballot
so as it is centered among the respective columns.
(D) The location for indicating the voter's choices on the ballot is to be clearly shown. For
paper ballots, other than those tabulated electronically, the official primary ballot is to contain a
square formed in dark lines at the left of each name on the ballot, arranged in a perpendicular column
of squares before each column of names.
(3)(A) The name of every candidate certified by the Secretary of State or the board of ballot commissioners is to be printed in capital letters in no smaller than eight point type on the ballot for
the appropriate precincts. Subject to the rules promulgated by the Secretary of State, the name of
each candidate is to appear in the form set out by the candidate on the certificate of announcement,
but in no case may the name misrepresent the identity of the candidate nor may the name include any
title, position, rank, degree or nickname implying or inferring any status as a member of a class or
group or affiliation with any system of belief.
(B) The city of residence of every candidate, the state of residence of every candidate residing
outside the state, the county of residence of every candidate for an office on the ballot in more than
one county and the magisterial district of residence of every candidate for an office subject to
magisterial district limitations are to be printed in lower case letters beneath the names of the
candidates.
(C) The arrangement of names within each office must be determined as prescribed in section
thirteen-a of this article.
(D) If the number of candidates for an office exceeds the space available on a column or
ballot page and requires that candidates for a single office be separated, to the extent possible, the
number of candidates for the office on separate columns or pages are to be nearly equal and clear
instructions given the voter that the candidates for the office are continued on the following column
or page.
(4) When an insufficient number of candidates has filed for a party to make the number of
nominations allowed for the office or for the voters to elect sufficient members to the board of
Education or to executive committees, the vacant positions on the ballot shall be filled with the
words 'No Candidate Filed': Provided, That in paper ballot systems which allow for write-ins to be made directly on the ballot, a blank line shall be placed in any vacant position in the office of
board of education or for election to any party executive committee. A line shall separate each
candidate from every other candidate for the same office. Notwithstanding any other provision of
this code, if there are multiple vacant positions on a ballot for one office, the multiple vacant
positions which would otherwise be filled with the words 'No Candidate Filed' may be replaced with
a brief detailed description, approved by the Secretary of State, indicating that there are no
candidates listed for the vacant positions.
(5) In presidential election years, the words 'For election in accordance with the plan adopted
by the party and filed with the Secretary of State' is to be printed following the names of all
candidates for delegate to national convention.
(6) All paper ballots are to be printed in black ink on paper sufficiently thick so that the
printing or marking cannot be discernible from the back: Provided, That no paper ballot voted
pursuant to the provisions of 42 U.S.C. §1973, et seq., the Uniformed and Overseas Citizens
Absentee Voting Act of 1986, or Federal write-in absentee ballot may be rejected due to paper type,
envelope type, or notarization requirement. Ballot cards and paper for printing ballots using
electronically sensible ink are to meet minimum requirements of the tabulating systems and are to
conform in size and weight to ensure ease in tabulation.
(7) Ballots are to contain perforated tabs at the top of the ballots and are to be printed with
unique sequential numbers from one to the highest number representing the total number of ballots
printed. On paper ballots, the ballot is to be bordered by a solid line at least one sixteenth of an inch
wide and the ballot is to be trimmed to within one-half inch of that border.
(8) On the back of every official ballot or ballot card the words 'Official Ballot' with the name of the county and the date of the election are to be printed. Beneath the date of the election
there are to be two blank lines followed by the words 'Poll Clerks'.
(9) The face of sample paper ballots and sample ballot labels are to be like other official
ballots or ballot labels except that the word 'sample' is to be prominently printed across the front of
the ballot in a manner that ensures the names of candidates are not obscured and the word 'sample'
may be printed in red ink. No printing may be placed on the back of the sample."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 298), 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: Argento and Cann.
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. 4589) 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. 43, The "Perdue Brothers Memorial Bridge WWII Vets Walter, Riley, James,
Norman, Omer, Earl".
On motion of Delegate Boggs, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, in the fifth Whereas clause, by striking out the word "Vets" and inserting in lieu
thereof the word "Veterans";
On page two, after the resolving clause, by striking out the word "Vets" and inserting in lieu
thereof the word "Veterans".
And,
On page two, in the first Further Resolved clause, by striking out the word "Vets" and
inserting in lieu thereof the word "Veterans".
And by amending the title of the resolution to read as follows:
H. C. R. 43 - "Requesting the Division of Highways to name the bridge in Lavalette in
Wayne County on Route 152, bridge number 50-152-40.39, as the 'Perdue Brothers Memorial
Bridge WWII Veterans Walter, Riley, James, Norman, Omer, Earl'."
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 that the Senate had passed, without amendment, bills of
the House of Delegates, as follows:
Com. Sub. for H. B. 4038, Imposing a statutory lien on fire insurance proceeds in the event
of a total loss to real property,
Com. Sub. for H. B. 4167, Creating a special revenue fund, known as the Department of
Health and Human Resources Safety and Treatment Fund,
Com. Sub. for H. B. 4211, Providing supplemental funding for providing alternative programs for limited English proficient students,
Com. Sub. for H. B. 4359, Requiring local labor for public construction projects,
And,
Com. Sub. for H. B. 4669, Granting exceptions to certain statutes to innovation zone plans
approved by state board.
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
S. B. 42, Revising Municipal Economic Opportunity Development District Act,
Com. Sub. for S. B. 81, Creating WV Official Prescription Program Act,
And,
Com. Sub. for S. B. 240, Authorizing Department of Administration promulgate legislative
rules.
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. 273, Authorizing DEP promulgate legislative rules.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Minard, Williams and Barnes.
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, of
Com. Sub. for S. B. 365, Requiring pharmacies provide personnel online access to
controlled substances database,
S. B. 385, Requiring banks provide bond to secure certain county deposits,
S. B. 595, Extending vesting period for subdivision and land development plans,
Com. Sub. for S. B. 618, Relating to osteopathic physician assistants,
And,
Com. Sub. for S. B. 665, Transferring certain Health Care Authority's duties to Insurance
Commissioner.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 15 - "Requesting the Joint Committee on Government and Finance study the issue
of student performance in relation to instructional time and the issue of counting as full instructional
days those days which have two hour delays or early dismissals."
Whereas, there is some evidence indicating that the amount of time spent in engaged
academic learning in school correlates positively with academic achievement, particularly in reading,
math and science, and especially for low performing students; and
Whereas, a study of Grade 8 students in 39 countries found a moderate positive association
between total school days per year and mathematics and science scores, such that students in countries with longer school years also had higher achievement rates in these areas of study; and
Whereas, the majority of states, including West Virginia, set the school year at 180 days;
and
Whereas, only three counties in West Virginia met the statutorily mandated 180 days with
half falling at or below 176 days in 2008-2009; and
Whereas, unscheduled two hour delays or early dismissals were called in the state an
average of 6.9 days during the 2008-2009 school year due to inclement weather; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study
instructional time in and for the state; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 23 - "Requesting the Joint Committee on Government and Finance study the issue
of reducing school dropouts in West Virginia."
Whereas, Subcommittee C of the Joint Standing Committee on Education and
Subcommittee C of the Joint Standing Committee on the Judiciary jointly conducted a review of
truancy issues during the 2009-2010 interim period; and
Whereas, Subcommittee C of the Joint Standing Committee on Education recommended
legislation increasing the compulsory school attendance age to 17 and defining truancy as 5
unexcused absences during the school year; and
Whereas, A Subcommittee of the Senate Education Committee was formed during the 2010
session of the Legislature to further study the dropout issue; and
Whereas, The school dropout issue is such an important issue that further study of the issue
should be conducted; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the issue
of reducing school dropouts in West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 31 - "Requesting the Joint Committee on Government and Finance study how West
Virginia can implement a plan to fully develop the tourism industry in West Virginia."
Whereas, Travel spending in West Virginia has continuously increased every year since
2000; and
Whereas, Economic impact from direct travel spending in West Virginia totaled $4.38
billion in 2008; and
Whereas, Travel spending directly supports 44,000 jobs in West Virginia; and
Whereas, Millions of travel-related dollars are generated annually in every West Virginia
county (from $1.3 million to $729.3 million); and
Whereas, West Virginia's landscape, culture and history present tourism development
opportunity in every county; and
Whereas, West Virginia tourism generated 14 million overnight visitors and 40 million day-
trip visitors in 2008; and
Whereas, West Virginia is situated within a day's drive of a large proportion of the United
States population; and
Whereas, The tourism industry serves as West Virginia's front-line representatives to the
traveling public; and
Whereas, Outdoor recreation pursuits in West Virginia far outpace the national average; and
Whereas, Cultural and heritage tourism pursuits outpace the national average; and
Whereas, Tourism attractions and activities positively contribute to the quality of life for
West Virginians; and
Whereas, Tourism attractions and activities therefore attract businesses to West Virginia;
and
Whereas, Despite the economic downturn, West Virginia has remained stronger in tourism-
generated revenues than other neighboring states; and
Whereas, Without tourism tax revenues, West Virginia residents would have to pay an
additional $799 in annual state and local taxes to maintain current levels of service; and
Whereas, There is no centralized long-term planning at the state level that assesses the
strengths and weaknesses of the state's tourism industry, coordinate various initiatives, and provide
strategies to develop, improve and expand tourism industries; and
Whereas, Because the continuing growth and development of West Virginia's economy is
of major concern to all our citizens it is in the best interest of the State of West Virginia to
implement a plan for the State of West Virginia to develop the tourism industry to the fullest extent
possible in order to further diversify West Virginia's economy; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
implementation of a comprehensive analysis and action plan to fully develop the tourism industry
in West Virginia, including the future development of events, attractions, and facilities in the State
of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 46 - "Requesting the Joint Committee on Government and Finance study the effects
of coal slurry impoundments and the underground injection of coal slurry on human health and the
environment; alternatives to impoundments and underground injection; re-mining of coal waste and
the use of abandoned mine land funds."
Whereas, The coal slurry impoundments and underground injection are accepted methods
of coal slurry disposal for which the Department of Environmental Protection issues permits; and
Whereas, coal slurry impoundments have been breached causing damage to human health,
property and the environment;
Whereas, there are alternative technologies that may be cost effective and have fewer
impacts on human health and the environment including re-mining of coal wastes; and
Whereas, The effects of underground injection of coal slurry may present serious public
health and environmental questions and their may be better alternatives; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the effects
of impounding coal slurry and underground injection of coal slurry on human health and the
environment; alternatives to impoundments and underground injection; re-mining of coal waste and the use of abandoned mine land funds; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare reports and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 52 - "Requesting the Joint Committee on the Judiciary to study the need to designate
the State Police Crimes Against Children unit as the entity charged with issuing administrative
subpoenas for child pornography investigations in order to connect an IP address to a physical
location which can be further investigated in order to obtain a search warrant or an arrest warrant."
Whereas, viewing child pornography and soliciting minors via the internet is a growing
problem in West Virginia; and
Whereas, the State Police Crimes Against Children unit monitors the internet usage in West
Virginia in an attempt to protect children from harm; and
Whereas, monitoring internet usage allows the State Police to recover certain IP addresses
of computers that are viewing or transmitting child pornography or involved in the solicitation of
minors; and
Whereas, the State Police do not have the ability to connect an IP address to a physical
location without assistance from an Internet Service Provider; and
Whereas, the current process requires the State Police to obtain a subpoena from a court before the Internet Service Provider will provide the physical location to the State Police or utilize
federal statutes; and
Whereas, the additional time required to obtain the subpoena from a court may cause a
delay during the time, namely the first hour, when most abducted children are killed by their
abductor; and
Whereas, the Internet Service Providers are already cooperating with federal law
enforcement through similar subpoenas; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on the Judiciary is hereby requested to study the process currently
used to investigate child pornography and other child-related internet crimes, as well as how the
additional tool of an administrative subpoena by the State Police will effect that process; and, be it
Further Resolved, That the Joint Committee on the Judiciary report to the regular session of
the Legislature in 2011 on its findings, conclusions and recommendations, together with drafts of
any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That 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 the
Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 60 - "Expressing the will of the Legislature to reaffirm the sister-state relationship the state of West Virginia has with the Taiwan Province of the Republic of China and affirm support
for increasing Taiwan's participation in and contribution to the global community."
Whereas, August 4, 2010, will mark the 30th anniversary of a sister-state relationship
between West Virginia and Taiwan; and
Whereas, For the past 30 years, the sister-state relationship with Taiwan has been
strengthened through the efforts of the Taipei Economic and Cultural Representative Office resulting
in better mutual understanding of the economic, social and heritage of West Virginia and Taiwan;
and
Whereas, Taiwan's absence from the international organizations dealing with climate
change like the United Nations Framework Convention on Climate Change has impeded Taiwan's
ability to respond to natural disasters like Typhoon Morakot, which struck Taiwan in the summer
of 2009; and
Whereas, Since 2001, aviation safety has become a major global concern, Taiwan is a key
air transport hub in the Asia-Pacific region, with over 1.35 million flights passing through every year,
and has the world's 11th largest airport by cargo volume, Taoyuan International Airport; and
Whereas, Given Taiwan's prominent role in regional air control and transport services like
meaningful participating in the International Civil Aviation Organization, it would be beneficial for
Taiwan, and safeguard the traveling of passengers from home and abroad; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby expresses its will to reaffirm the sister-state relationship the state
of West Virginia has with the Taiwan Province of the Republic of China and affirm support for
increasing Taiwan's participation in and contribution to the global community; and, be it
Further Resolved, That the Legislature affirms its support for the participation of Taiwan in
United Nations Framework Convention on Climate Change and the International Civil Aviation
Organization to increase Taiwan's contribution to the global community; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the President of the United States, the President of the United States Senate and the
Speaker of the United States House of Representatives.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 64 - "Requesting the Joint Committee on Government and Finance study how to
transition into a more diverse economy for West Virginia."
Whereas, The economy of West Virginia has been largely dependent on coal and
diversification is necessary; and
Whereas, Recent federal issues regarding the future of coal has risen through the tightening
of permitting and potential taxation of the industry; and
Whereas, The State is in the process of developing a broad energy policy that will enhance
renewable and alternative energies; and
Whereas, West Virginia has a significant potential for hydro electric power production and
must begin a dialogue with the US Army Corps of Engineers to take advantage of this potential; and
Whereas, West Virginia is a mountainous state and in particular, coal producing areas have
a lack of developable land and basic infrastructure; and
Whereas, Due to West Virginia's natural resources, energy has a role in the economic
diversification of West Virginia; and
Whereas, Health care is a significant part of West Virginia's economy spending $13 billion
annually in the state and over 12% of the workforce is employed in health care services; and
Whereas, Employment in the health care field grew by 41% over the past decade; and
Whereas, The nursing field and the electronic medical record field are two areas that have
demonstrated a great potential for growth in West Virginia; and
Whereas, West Virginia has great natural beauty and retirees would find it as a great place
to live and actively age; and
Whereas, The education system can be responsive to the area's needs and can develop a
new, highly educated work force including health care and high technology jobs; and
Whereas, The growth of manufacturing is critical to the success of diversifying our state;
and
Whereas, The future of the state of West Virginia depends upon economic diversification;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study how to
transition into a more diverse economy for West Virginia that includes clean coal, renewable and
alternative energies, healthcare industries, manufacturing and a component of secondary and higher
education that will develop high technology industries.
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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.
Resolutions Introduced
Delegates Doyle, Michael, Campbell, Shaver, Mahan, Williams, Ross, Hartman and
Canterbury offered the following resolution, which was read by its title and referred to the
Committee on Rules:
H. C. R. 131 - "Requesting the Joint Committee on Government and Finance study the
impact of the ski resort industry on West Virginia's economy and policies designed to encourage
expansion of existing downhill and Nordic ski facilities and the development of new facilities."
Whereas, The ski resort industry plays an important role in West Virginia's tourism
economy and would have significant potential for even greater growth and economic impact on the
state's economy if properly developed and made subject to public policies designed to assist the ski
industry in sustaining its growth; and
Whereas, West Virginia's eastern mountains have the topography and weather to present
and ski product that rivals that of the New England states; and
Whereas, Were the ski resort industry to reach its full potential, West Virginia could see
the addition of several hundred million dollars per year into its economy; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to create a select
committee to study the impact the ski resort industry has on West Virginia's economy, consisting of four members of the West Virginia Senate and four members of the West Virginia House of
Delegates, and such number of citizen members as may be appropriate; and, be it
Further Resolved, That the select committee report to the Joint Committee on Government
and Finance at the conclusion of the 2010-2011 interim meeting period, on its findings, conclusions
and recommendations together with drafts of any legislation 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 Schoen, Hunt and Ellem offered the following resolution, which was read by its
title and referred to the Committee on Rules:
H. C. R. 132 - "Requesting the Joint Committee on Government and Finance to study the
feasibility, benefits and impact of permitting law-enforcement officers to take persons who are
driving with suspended or revoked drivers' licenses directly to a magistrate."
Whereas, According to the West Virginia State Police, tens of thousands of West Virginia
drivers are driving on suspended or revoked drivers' licenses; and
Whereas, Law-enforcement officers are finding it increasingly difficult to enforce the
drivers' licensure requirements; and
Whereas, It is in the public interest for the state to encourage and enforce the motor vehicle
drivers' license laws of this state; and
Whereas, Allowing drivers to skirt their responsibilities and legal obligations poses a substantial risk to public safety; and
Whereas, Barriers to enforcement of the laws of this state should be removed; and
Whereas, With Senate Bill 550 pending before the Legislature there would be a mechanism
by which violators could return to a lawful driving status; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
feasibility, benefits and impact of permitting law-enforcement officers to take persons who are
driving with suspended or revoked drivers' licenses directly to a magistrate; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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.
Delegate Talbott offered the following resolution, which was read by its title and referred to
the Committee on Rules:
H. R. 31 - "Recognizing James Fitzpatrick, dedicated public servant and distinguished West
Virginian."
Whereas, James Fitzpatrick has been a citizen of Richwood, West Virginia, for the past 40
years; and
Whereas, James Fitzpatrick is married to his beloved wife Joan, with whom he shares the
joy of having two sons, Jaime and Todd, and daughter Kelly, along with two grandchildren, Treston
and Tyler; and
Whereas, James Fitzpatrick has served the city of Richwood in numerous capacities,
including, as a council member and most recently as recorder; and
Whereas, James Fitzpatrick has been an honorable business man, church member and
member of several boards which all aim to better the lives of the citizens of Richwood and Nicholas
County; and
Whereas, James Fitzpatrick has excelled in public service not only locally, but on the state
level as well, having worked with the National Guard and most recently General Tackett, and every
Governor and First Lady since 1960; and
Whereas, James Fitzpatrick has been instrumental in securing state funds which have
improved the quality of life for the citizens of Richwood and Nicholas County; and
Whereas, James Fitzpatrick has earned the respect of his colleagues, the citizens he
represents and all people who have crossed his path during his many years of public service; and
Whereas, James Fitzpatrick's high degree of professional integrity exemplifies the public's
expectations for the conduct of a public servant; therefore, be it
Resolved by the House of Delegates:
That the House of Delegates hereby recognizes James Fitzpatrick, dedicated public servant
and distinguished West Virginian; and, be it
Further Resolved, That the House of Delegates commends James Fitzpatrick for his tireless
work for the people of Richwood, Nicholas County and West Virginia; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this
resolution to James Fitzpatrick.
Petitions
Delegate D. Walker presented a petition on behalf of his constituents, supporting the
extension of the Dille-Widen Waterline system; which was referred to the Committee on Energy,
Industry and Labor, Economic Development and Small Business.
Special Calendar
Unfinished Business
The following resolutions, coming up in regular order, as unfinished business, were each
reported by the Clerk and adopted:
H. C. R. 75, Requesting a study on the feasibility of authorizing the DMV to adopt a program
to utilize electronic verification of insurance coverage to identify uninsured motor vehicles,
And,
H. C. R. 111, Urging the United States Environmental Protection Agency to interpret the
West Virginia Water Pollution Act.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Third Reading
Com. Sub. for S. B. 480, Relating to public higher education personnel; on third reading,
coming up in regular order, with an amendment pending, and the restricted right to amend, was
reported by the Clerk.
An amendment, recommended by the Committee on Education, was reported by the Clerk
on page forty, section four, lines one hundred seventy-six and one hundred seventy-seven, by striking
out the words "Charleston or outside Charleston in a technology and research center" and inserting
in lieu thereof the words "Kanawha County".
On page forty-three, section four, line two-hundred twenty-nine, preceding the semicolon,
by inserting a comma, followed by the words "and the location of the West Virginia Network for
Educational Telecomputing (WVNET) may not be moved without legislative approval".
On page seventy-seven, section eight, line fifteen, by striking out the semicolon and the word
"and", and inserting in lieu thereof a period.
On page seventy-seven, section eight, by striking out all of lines twenty-three and twenty-
four, and renumbering the remaining subdivisions accordingly.
On page seventy-eight, section eight, line thirty-five, preceding the word "six", by striking
out the word "five-a" and a comma.
On page seventy-eight, section eight, line forty-five, by striking out the subdivision
designation "(1)".
On page seventy-nine, section eight, line fifty-one, by striking out the paragraph designation
"(A)" and inserting in lieu thereof "(1)".
On page seventy-nine, section eight, line fifty-six, by striking out the paragraph designation
"(B)" and inserting in lieu thereof "(2)".
On page seventy-nine, section eight, line sixty-two, by striking out the paragraph designation
"(C)" and inserting in lieu thereof "(3)".
On page eighty-one, section three, line fifteen, by striking out the words "higher education"
and inserting in lieu thereof the words "community and technical colleges".
On page eighty-eight, section one, line eighty-six, by striking out the word "presidents" and
inserting in lieu thereof the word "president".
On page one hundred twenty-two, section one, line forty-two, by striking out the subsection
designation "(d)" and inserting in lieu thereof "(c)".
On page one hundred twenty-two, section one, lines forty-four and forty-five, by striking out
the words "Charleston or outside Charleston in a technology and research center" and inserting in
lieu thereof the words "Kanawha County".
On page one hundred fifty-nine, section eight, line one hundred twenty-nine, by striking out
the subsection designation "(d)" and inserting in lieu thereof "(e)".
On page one hundred eighty-five, section three, line forty-six, by striking out the word
"scheduled" and inserting in lieu thereof the word "schedule".
On page two hundred seven, section six, line eleven, by striking out the subdivision
designation "(4)" and inserting in lieu thereof "(3)".
On page two hundred seven, section six, line twelve, by striking out the subdivision designation "(5)" and inserting in lieu thereof "(4)".
On page two hundred seventeen, section seven, line one hundred fifty-one, preceding the
word "organization" by striking out the word "A" and inserting in lieu thereof the word "An";
On page two hundred thirty-two, section one, line two hundred seven, following the word
"percent" by inserting the words "for resident students".
On page two hundred thirty-three, section one, line two hundred thirteen, following the word
"percent" by inserting the words "for resident students".
On page two hundred thirty-two, section one, line two hundred eighteen, following the word
"increase" by inserting the words "for resident students".
On page two-hundred thirty-three, section one, line two-hundred ten, following the word
"University" by inserting a comma, followed by the words "West Virginia School of Osteopathic
Medicine".
On page two-hundred thirty-three, section one, line two-hundred fourteen, following the word
"University" by inserting a comma, followed by the words "West Virginia School of Osteopathic
Medicine".
On page two hundred forty-three, section three, line thirty-three, by striking out the words
"corporate directors" and inserting in lieu thereof the words "affiliated governing board".
On page two hundred forty-three, section three, line thirty-six, following the period, by
inserting the words "The affiliated governing board may not delegate this duty to the president of
the institution under its jurisdiction."
Delegates Fleischauer, Beach, Marshall and Shook moved to amend the Education
Committee amendment on page forty-three, section four, line two hundred twenty-nine, by striking
out the proposed Committee language "and the location of the West Virginia Network for
Educational Telecomputing (WVNET) may not be moved without legislative approval" and inserting
in lieu thereof the words "and the current employees of West Virginia Network for Educational
Telecomputing (WVNET) shall continue their employment with WVNET and shall not be moved
from Monongalia County without legislative approval."
On the adoption of the amendment to the amendment, Delegate Beach demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken
(Roll No. 299), and there were--yeas
14, nays 84, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Andes, Azinger, Beach, Cowles, Fleischauer, Hartman, Lane, Manypenny, Marshall,
Ross, Schadler, Shook, Williams and Wooton.
Absent And Not Voting: Argento and Cann.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment was did not prevail.
On motion of Delegates M. Poling and Paxton, the Education Committee amendment was
amended on page forty-three, section four, line two-hundred twenty-nine, by striking out the
proposed Committee language "and the location of the West Virginia Network for Educational
Telecomputing (WVNET) may not be moved without legislative approval".
The Education Committee amendment, as amended, was then adopted.
Delegate Andes requested to be recorded as voting "Nay" on the adoption of the Education
Committee amendment.
On motion of Delegates M. Poling, Paxton, Williams, Craig and Reynolds the bill was
amended on page thirty-nine, section four, line one hundred fifty-eight, following the comma, by
inserting the words "except when the capital projects are funded solely through private or federal
funds or both" and a comma.
On page one hundred eighty-two, section two, line twenty-five, following the word "annum",
by inserting a comma, followed by the words "excluding those payments made pursuant to section
two, article five, chapter five of this code" and a comma.
On page one hundred ninety-seven, section four, line nineteen, following the paragraph
designation "(F)" by inserting the words "One human resources director representing the doctoral
degree granting institutions appointed by the appropriate chancellor. This individual may not
represent the same institution that is represented by the membership position provided in paragraph
(I) of this subdivision; (G)".
On page one hundred ninety-seven, section four, line twenty-two, by striking out the
paragraph designation "(G)" and inserting in lieu thereof "(H)".
On page one hundred ninety-seven, section four, line twenty-five, by striking out the
paragraph designation "(H)" and inserting in lieu thereof "(I) One classified employee representing
the doctoral degree granting institutions appointed by the appropriate chancellor. This individual
may not represent the same institution that is represented by the membership position provided in paragraph (F) of this subdivision;" and relettering the remaining paragraph designations accordingly.
On page one hundred ninety-eight, section four, line forty-two, by striking out the word "one"
and inserting in lieu thereof the word "two".
On page two hundred two, section five, line seventeen, following the subdivision designation
"(4)", by inserting the following "One classified employee representing the doctoral degree granting
institutions appointed by the appropriate chancellor. This individual may not represent the same
institution that is represented by the membership position provided in subdivision (11) of this
subsection; (5)".
On page two hundred two, section five, line twenty, by striking out the subdivision
designation "(5)" and inserting in lieu thereof "(6)".
On page two hundred three, section five, line twenty-three, by striking out the subdivision
designation "(6)" and inserting in lieu thereof "(7)".
On page two hundred three, section five, line twenty-five, by striking out the subdivision
designation "(7)" and inserting in lieu thereof "(8)".
On page two hundred three, section five, line twenty-seven, by striking out the subdivision
designation "(8)" and inserting in lieu thereof "(9)".
On page two hundred three, section five, line thirty, by striking out the subdivision
designation "(9)" and inserting in lieu thereof "(10)".
On page two hundred three, section five, line thirty-three, by striking out the subdivision
designation "(10)" and inserting in lieu thereof the following "(11) One human resources professional representing the doctoral degree granting institutions appointed by the appropriate
chancellor. This individual may not represent the same institution that is represented by the
membership position provided in subdivision (4) of this subsection; (12)" and renumbering the
remaining subdivision designations accordingly.
On page two hundred forty-two, section three, line twenty-six, by striking out the words
"Private sector" and inserting in lieu thereof the word "Affiliated".
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 300),
and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Carmichael, Lane, McGeehan, Schoen, Shook and Walters.
Absent And Not Voting: Argento and Cann.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 480) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 301), and there were--yeas 92, nays
6, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Carmichael, McGeehan, Schoen and Walters.
Absent And Not Voting: Argento and Cann.
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. 480) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 597, Requiring women seeking abortion opportunity to see fetus
ultrasound image; on third reading, coming up in regular order, with an amendment pending and the
further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"That §16-2I-10 of the Code of West Virginia, 1931, as amended, be repealed, that §16-2I-2,
§16-2I-8 and §16-2I-9 be amended and reenacted, all to read as follows:
§16-2I-2. Informed consent.
No abortion may be performed in this state except with the voluntary and informed consent
of the female upon whom the abortion is to be performed. Except in the case of a medical
emergency, consent to an abortion is voluntary and informed if, and only if:
(a) The female is told the following, by telephone or in person, by the physician or the
licensed health care professional to whom the responsibility has been delegated by the physician who
is to perform the abortion at least twenty-four hours before the abortion:
(1) The particular medical risks associated with the particular abortion procedure to be
employed, including, when medically accurate, the risks of infection, hemorrhage, danger to subsequent pregnancies and infertility;
(2) The probable gestational age of the embryo or fetus at the time the abortion is to be
performed; and
(3) The medical risks associated with carrying her child to term.
The information required by this subsection may be provided by telephone without
conducting a physical examination or tests of the patient, in which case the information required to
be provided may be based on facts supplied by the female to the physician or other licensed health
care professional to whom the responsibility has been delegated by the physician and whatever other
relevant information is reasonably available to the physician or other licensed health care
professional to whom the responsibility has been delegated by the physician. It may not be provided
by a tape recording, but must be provided during a consultation in which the physician or licensed
health care professional to whom the responsibility has been delegated by the physician is able to
ask questions of the female and the female is able to ask questions of the physician or the licensed
health care professional to whom the responsibility has been delegated by the physician.
If a physical examination, tests or the availability of other information to the physician or
other licensed health care professional to whom the responsibility has been delegated by the
physician subsequently indicate, in the medical judgment of the physician or the licensed health care
professional to whom the responsibility has been delegated by the physician, a revision of the
information previously supplied to the patient, that revised information may be communicated to the
patient at any time
prior to before the performance of the abortion procedure.
Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.
(b) The female is informed, by telephone or in person, by the physician who is to perform the
abortion, or by an agent of the physician, at least twenty-four hours before the abortion procedure:
(1) That medical assistance benefits may be available for prenatal care, childbirth and
neonatal care through governmental or private entities;
(2) That the father, if his identity can be determined, is liable to assist in the support of her
child based upon his ability to pay even in instances in which the father has offered to pay for the
abortion;
and
(3) That she has the right to review the printed materials described in section three of this
article, that these materials are available on a state-sponsored website and the website address
;
and
(4) That the female will be presented with a form which she will be required to execute prior
to the abortion procedure that is available pursuant to section three of this article, and that the form
to be presented will inform her of the opportunity to view the ultrasound image and her right to view
or decline to view the ultrasound image, if an ultrasound is performed.
The physician or an agent of the physician shall orally inform the female that the materials
have been provided by the State of West Virginia and that they describe the embryo or fetus and list
agencies and entities which offer alternatives to abortion.
If the female chooses to view the materials other than on the website, then they shall either
be provided to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by first class mail in an unmarked envelope.
The information required by this subsection may be provided by a tape recording if provision
is made to record or otherwise register specifically whether the female does or does not choose to
have the printed materials given or mailed to her.
(c) The form required pursuant to subdivision (4), subsection (b) of this section shall include
the following information: (1) It is a female's decision whether or not to undergo any ultrasound
imaging procedure in consultation with her health care provider; (2) If an ultrasound is performed
in conjunction with the performance of an abortion procedure, the female has the right to view or
to decline to view the image; and (3) That the woman has been previously informed of her
opportunity to view the ultrasound image and her right to view or decline to view the ultrasound
image. The woman shall certify her choice on this form prior to the abortion procedure being
performed.
(c) The female shall certify in writing,
prior to before the abortion, that the information
described in subsections (a) and (b) of this section has been provided to her and that she has been
informed of her opportunity to review the information referred to in subdivision (3), subsection (b)
of this section.
(d) Prior to Before performing the abortion procedure, the physician who is to perform the
abortion or the physician's agent shall obtain a copy of the executed certification required by the
provisions of
subsection subsections (b) and (c) of this section.
§16-2I-8. Administrative remedies.
Any physician or agent thereof who willfully violates the provisions of this article may be subject to sanctions as levied by the licensing board governing his or her profession.
(a) Any person or entity may make a complaint to the licensing board, if any, of a person
whose conduct is regulated by the provisions of this article and may charge such person with a
violation of this article.
(b) Any physician or agent thereof who willfully violates the provisions of this article is
subject to sanctions by the licensing board governing his or her profession. For the first violation,
the licensing board shall issue a written reprimand to the violator. For the second violation, the
licensing board shall revoke the violator's license.
(c) No penalty or civil liability may be assessed for failure to comply with paragraph (3),
subsection (b), section two of this article or that portion of subsection (c) of said section requiring
a written certification that the female has been informed of her opportunity to review the information
referred to in paragraph (3), of subsection (b) of said section unless the department of health and
human resources has made the printed materials available at the time the physician or the licensed
health care professional to whom the responsibility has been delegated by the physician is required
to inform the female of her right to review them.
§16-2I-9. Civil remedies.
Any person upon whom an abortion has been attempted or performed without section two
of this article having been complied with may maintain an action against the person who attempted
to perform or did perform the abortion with a knowing or consciously, subjectively and deliberately
formed intention to violate this article for compensatory damages. If the person upon whom an
abortion has been attempted or performed without section two of this article having been complied with is a minor, the legal guardian of the minor may maintain an action against the person who
attempted to perform or did perform the abortion with a knowing or consciously, subjectively and
deliberately formed intention to violate this article for compensatory damages.
§16-2I-9. Severability.
If any one or more provision, section, subsection, sentence, clause, phrase or word of this
article or the application thereof to any person or circumstance is found to be unconstitutional, the
same is hereby declared to be severable and the balance of this article shall remain effective
notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed
this article, and each provision, section, subsection, sentence, clause, phrase or word thereof,
irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase
or word be declared unconstitutional."
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 302),
and there were--yeas 80, nays 17, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Brown, Campbell, Caputo, Doyle, Fleischauer, Guthrie, Hatfield, Hunt, Hutchins,
Lawrence, Mahan, Marshall, Morgan, Phillips, Poore, Talbott and Wells.
Absent And Not Voting: Argento, Cann and Moore.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 597) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 597 - "A Bill to repeal §16-2I-10 of the Code of West Virginia, 1931,
as amended, and to amend and reenact §16-2I-2, §16-2I-8 and §16-2I-9 of said code, all relating to
physician assisted abortions; requiring prior notice to the patient of the opportunity to view any
ultrasound image utilized and in conjunction with the abortion procedure; providing the contents of
a form to be provided to and signed by the female undergoing the abortion relating to her right to
view or not view the ultrasound image; revising administrative remedies for physicians and their
agents that do not comply with the provisions of the Woman's Right to Know Act; removing civil
liability and civil remedies associated with failure to comply with the Woman's Right to Know Act;
and providing for severability."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 427, Renaming and reorganizing Parkways, Economic Development
and Tourism Authority; on third reading, coming up in regular order, with an amendment pending
and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page thirty-nine, section twenty-nine, line fifteen, by striking all of
subsection (c) in its entirety and inserting in lieu thereof the following:
"
(c) Annually, the Parkways Authority shall hold at least one public informational session
in each of the following counties: Kanawha, Fayette, Raleigh and Mercer counties. The Authority
is to distribute educational materials and other information concerning the discount program for purchasers of West Virginia EZ Pass transponders described in this section."
On page forty, section twenty-nine, following line twenty-four, by inserting a new subsection
(d) to read as follows:
"
(d) Upon the effective date of the amendments to this section enacted during the regular
session of the Legislature in the year 2010, the Authority shall make available West Virginia EZ Pass
transponders to the public without the payment of any monetary security deposit. The Authority
shall credit any individual that has paid a security deposit for a West Virginia EZ Pass transponder
prior to July 1, 2010, on the individual's next billing statement."
And, relettering the remaining subsection.
On motion of Delegate White, the bill was amended on page seventeen, section six, line
nineteen, following the word "
Turnpike", by inserting the words "
subject to the provisions of section
thirty of this article".
On page thirty-two, section thirteen-a, line ten, by striking the semicolon and the words
"
Provided, That prior to fixing any initial rates, tolls or charges along any portion of a parkway
project, the Parkways Authority shall obtain the approval of the county commission or county
commissions where such parkway project is located: Provided further, That once a parkway project
is identified by the Authority a local committee shall be established by the Governor with the advice
and consent of the Senate. The local committee shall consist of two positions for each county within
the project area. The local committee shall provide recommendations and suggestions to the
Authority on all matters regarding the local identified project".
On page forty, following line twenty-nine, by inserting a new section thirty to read as follows:
"
§17-16A-30. Coordination with county commission in counties where a parkway project may
be located.
Once a parkway project is identified by the Authority, the Governor shall appoint, with the
advice and consent of the Senate, two persons from each county where the parkway project is located
to serve on a local committee to provide recommendations and suggestions to the Authority on all
matters regarding the local identified project. The local committee shall also report any of its
findings to the county commission or county commissions of the counties in which the parkway
project is located. Prior to any final approval of a parkway project, the county commissions of the
counties in which a parkway project is located shall by resolution approve the parkway project."
And, to amend the enacting section of the bill to read as follows:
"That §17-16A-3, §17-16A-5, §17-16A-6, §17-16A-10, §17-16A-11, §17-16A-13a, §17-
16A-19, §17-16A-26 and §17-16A-29 of the Code of West Virginia, 1931, as amended, be amended
and reenacted; that said code be amended by adding thereto a new section, designated §17-16A-30,
all to read as follows" and a colon.
On motion of Delegate Shott, the bill was amended on page twenty-one, line one hundred
twelve, by inserting the following new subdivision:
"(16) To investigate and, if feasible, develop and implement a "single fee" program which
would produce on an annual basis a sum of money equal to the total toll revenue received from all
West Virginia drivers on West Virginia toll roads during the Authority's preceding fiscal year,
divided into at least three classes based upon usage, size and number of axles. Said sum, plus an
amount necessary to cover the expected costs of such program, shall be produced by adding to either the annual cost of vehicle registration or of vehicle inspection a single fee equal to the proportionate
share of that vehicle owner of the total toll revenue needed to be produced from all vehicles within
that class. A vehicle for which such fee has been paid shall be entitled to traverse all toll roads
within the state without stopping to pay individual tolls during the effective period of said
registration or said inspection:
Provided, however, That if the single fee proposed to be charged
under said program exceeds the standard round trip toll for that vehicle over the entire length of the
West Virginia Turnpike, the Authority shall not implement such program without the prior approval
of both Houses of the Legislature:
Provided, further, That any such program shall also include
comparable provisions which would allow vehicles registered in other states to traverse West
Virginia toll roads in like fashion to West Virginia vehicles as set forth in this section upon the
payment of a single fee for each and every vehicle registered in such state, in accordance with the
same classification system adopted for West Virginia vehicles."
And,
Renumbering the remaining subdivisions accordingly.
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 303),
and there were--yeas 84, nays 14, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Armstead, Cowles, Eldridge, Frazier, Lane, Louisos, J. Miller, Moore, Moye,
Overington, Shaver, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento and Cann.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 427) passed.
On motion of Delegate White, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 427 - "A Bill to amend and reenact §17-16A-3, §17-16A-5, §17-16A-6,
§17-16A-10, §17-16A-11, §17-16A-13a, §17-16A-19, §17-16A-26 and §17-16A-29 of the Code of
West Virginia, 1931, as amended; and to amend said code by adding thereto a new section,
designated §17-16A-30, all relating to the West Virginia Parkways, Economic Development and
Tourism Authority; renaming the West Virginia Parkways, Economic Development and Tourism
Authority; reorganizing the membership of the authority; redefining terms; authorizing issuance of
revenue bonds for parkway projects; prohibiting the authority from constructing new tourism
projects or new economic development projects; clarifying and adding certain powers of the
authority relating to parkway projects, tourism projects and economic development projects;
clarifying certain powers of the Department of Transportation with respect to parkway projects;
clarifying the power of the authority to reimburse the Department of Transportation for costs
associated with parkway projects; clarifying certain powers of the authority with respect to real and
personal property; clarifying the powers of the authority to fix and revise tolls for transit over certain
parkway projects; requiring notice and public hearings prior to fixing initial rates or tolls on parkway
projects; requiring an annual legislative audit of the Parkways Authority; requiring the Parkways
Authority to provide certain information; requiring a discount program for purchasers of EZ Pass
transponders prior to fixing initial rates or tolls on parkway projects; requiring the Parkways
Authority to hold informational sessions concerning the discount program for purchasers of EZ Pass transponders; requiring EZ Pass transponders to be available without the payment of a security
deposit; requiring refunds of paid security deposits through credits on statements; requiring county
commission where a parkway project is located approve a parkways project by resolution; requiring
Governor to establish a local committee; and providing duties of the local committee."
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken
(Roll No. 304), and there were--yeas 95, nays
3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: J. Miller, Sobonya and Sumner.
Absent And Not Voting: Argento and Cann.
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. 427) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 230, Relating to Board of Optometry; on third reading, coming up in
regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Health and Human Resources was
reported by the Clerk and adopted, amending the bill on page three, following the enacting clause
by deleting the remainder of the bill and inserting in lieu thereof the following:
"
ARTICLE 8. OPTOMETRISTS.
§30-8-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice optometry in this state without
a license or permit issued under the provisions of this article, or advertise or use any title or
description tending to convey the impression that they are an optometrist unless the person has been
duly licensed or permitted under the provisions of this article.
(b) A business entity may not render any service or engage in any activity which, if rendered
or engaged in by an individual, would constitute the practice of optometry, except through a licensee
or
permitee permittee.
(c) A licensee may not practice optometry as an employee of any commercial or mercantile
establishment.
(d) A licensee may not practice optometry on premises not separate from premises whereon
eyeglasses, lenses, eyeglass frames or any other merchandise or products are sold by any other
person. For the purposes of this section, any room or suite of rooms in which optometry is practiced
shall be considered separate premises if it has a separate and direct entrance from a street or public
hallway or corridor within a building, which corridor is partitioned off by partitions from floor to
ceiling.
(e) A person who is not licensed under this article as an optometrist may not characterize
himself or herself as an 'optometrist', 'doctor of optometry', or
'optometric physician,' nor may a
person use the designation or as an 'OD'.
§30-8-2. Applicable law.
The practice of optometry and the Board of Optometry are subject to the provisions of article
one of this chapter, the provisions of this article and the board's rules.
§30-8-3. Definitions.
As used in this article:
(a) 'Appendages' means the eyelids, the eyebrows, the conjunctiva and the lacrimal
apparatus.
(b) 'Applicant' means any person making application for a license, certificate or temporary
permit under the provisions of this article.
(c) 'Board' means the West Virginia Board of Optometry.
(d) 'Business entity' means any firm, partnership, association, company, corporation, limited
partnership, limited liability company or other entity owned by licensees that practices optometry.
(e) 'Certificate' means a prescription certificate issued under section fifteen of this article.
(f) 'Certificate holder' means a person authorized to prescribe certain drugs under section
fifteen of this article.
(g) 'Collaborative arrangement' means a written protocol agreement for each patient to be
executed between an optometrist and ophthalmologist, and filed with the appropriate licensing
boards, for an optometrist meeting the criteria of this article. The ophthalmologist must be notified
when the procedure takes place by the optometrist and be available within forty miles of the
treatment site in case patient complications require a physician.
(h)(g) 'Examination, diagnosis and treatment' means a method compatible with accredited
optometric education and professional competence
pursuant to this article.
(i)(h)'License' means a license to practice optometry.
(j)(i) 'Licensee' means an optometrist licensed under the provisions of this article.
(k)(j) 'Ophthalmologist' means a physician specializing in ophthalmology licenced in West
Virginia to practice medicine and surgery under article thereof this chapter or osteopathy under
article fourteen of this chapter.
(l)(k) 'Permitee' 'Permittee' means a person holding a temporary permit.
(m)(l) 'Practice of optometry' means the examining, diagnosing and treating of any visual
defect or abnormal condition of the human eye or its appendages
within the scope established in this
article or associated rules.
For billing purposes only, an optometrist shall be viewed as a physician-
level practitioner.
(n)(m) 'Temporary permit' or 'permit' means a permit issued to a person who has graduated
from an approved school, has taken the examination prescribed by the board, and is awaiting the
results of the examination.
§30-8-4. Board of Optometry.
(a) The West Virginia Board of Optometry is continued. The members of the board in office
on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms expire
and until their successors have been appointed and qualified.
(b) The board shall consist of the following members appointed by the Governor, by and with
the advice and consent of the Senate:
(1) Five licensed optometrists; and
(2) Two citizen members, who are not licensed under the provisions of this article and who do not perform any services related to the practice of the profession regulated under the provisions
of this article.
(c) Each licensed member of the board, at the time of his or her appointment, must have held
a professional license in this state for a period of not less than three years immediately preceding the
appointment.
(d) Each member of the board must be a resident of this state during the appointment term.
(e) The term shall be three years. A member may not serve more than two consecutive full
terms. A member may continue to serve until a successor has been appointed and has qualified.
(f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired
term of the member whose office is vacant and the appointment shall be made within sixty days of
the vacancy.
(g) The Governor may remove any member from the board for neglect of duty, incompetency
or official misconduct.
(h) A member of the board immediately and automatically forfeits membership to the board
if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of
any jurisdiction, or becomes a nonresident of this state.
(i) The board shall elect annually a president and a secretary-treasurer from its members who
serve at the will of the board.
(j) Each member of the board is entitled to compensation and expense reimbursement in
accordance with article one of this chapter.
(k) A majority of the members of the board constitutes a quorum.
(l) The board shall hold at least two meetings a year. Other meetings may be held at the call
of the president or upon the written request of two members at the time and place as designated in
the call or request.
(m) Prior to commencing his or her duties as a member of the board, each member shall take
and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-8-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of
this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses, certificates and permits;
(3) Establish procedures for submitting, approving and rejecting applications for licenses,
certificates and permits;
(4) Determine the qualifications of any applicant for licenses, certificates and permits;
(5) Prepare, conduct, administer and grade examinations for licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations by the board or a third party administer, including
the number of persons taking the examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive
secretary;
(9) Maintain an office and hire, discharge, establish the job requirements and fix the
compensation of employees, investigators and contracted employees necessary to enforce the
provisions of this article;
(10) Investigate alleged violations of the provisions of this article, legislative rules, orders
and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of the provisions of this article;
(14) Maintain an accurate registry of names and addresses of all licensees regulated by the
board;
(15) Keep accurate and complete records of its proceedings, and certify the same as may be
necessary and appropriate;
(16) Establish the continuing education requirements for licensees;
(17) Issue, renew, combine, deny, suspend, revoke or reinstate licenses, certificates and
permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a
of this code to implement the provisions of this article; and
(20) Take all other actions necessary and proper to effectuate the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations required under the provisions
of this article;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistant in connection with legal matters
and questions.
§30-8-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions
of article three, chapter twenty-nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for licenses, certificates and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and
reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses, certificates and permits;
(8) A fee schedule;
(9) A prescription drug formulary classifying those categories of oral drugs rational to the
diagnosis and treatment of visual defects or abnormal conditions of the human eye and its
appendages, which may be prescribed by licensees from Schedules III, IV and V of the Uniform
Controlled Substances Act. The drug formulary may also include oral antibiotics, oral nonsteroidal
anti-inflammatory drugs and oral carbonic anhydrase inhibitors
.; The board shall consult with the
Board of Pharmacy and other appropriate boards before releasing these rules for public comment;
(10) Requirements
, in addition to the requirements for obtaining a certificate, for prescribing
and dispensing contact lenses that contain and deliver pharmaceutical agents that have been
approved by the Food and Drug Administration as a drug;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, revoking, reinstating or limiting the practice
of licensees, certificate holders and
permiteespermittees;
(13) Requirements for inactive or revoked licenses, certificates or permits;
and
(14) Requirements for an expanded scope of practice for those procedures that are taught at
50% of all accredited optometry schools;
(14)(15) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are
amended or repealed, and references to provisions of former enactments of this article are interpreted
to mean provisions of this article.
(c) The board shall promulgate procedural and interpretive rules in accordance with section
eight, article three, chapter twenty-nine-a of this code.
§30-8-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be
deposited in a separate special revenue fund in the State Treasury designated the 'West Virginia
Board of Optometry Fund', which is continued. The fund is used by the board for the administration
of this article. Except as may be provided in article one of this chapter, the board retains the amount
in the special revenue account from year to year. No compensation or expense incurred under this
article is a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into
the General Revenue Fund of the State Treasury.
§30-8-8. License to practice optometry.
(a) To be eligible for a license to engage in the practice of optometry, the applicant must:
(1) Be at least twenty-one years of age;
(2) Be of good moral character;
(3) Graduate from a school approved by the Accreditation Council on Optometric Education
or successor organization;
(4) Pass an examination prescribed by the board;
(5) Complete an interview with the board;
(6) Not be addicted to the use of alcohol, drugs or other controlled substances;
(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date
of application for license, which conviction has not been reversed; and
(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for
which he or she was convicted related to the practice of optometry, which conviction has not been
reversed.
(b) A registration to practice issued by the board prior to July 1, 2010, shall for all purposes
be considered a license issued under this article:
Provided, That a person holding a registration
issued prior to July 1, 2010, must renew pursuant to the provisions of this article.
§30-8-9. Scope of Practice.
(a) An licensee may:
(1) Examine, diagnosis and treat diseases and conditions of the human eye and its appendages
within the scope established in this article or associated rules;
(2) Administer or prescribe any drug for topical application to the anterior segment of the
human eye for use in the examination, diagnosis or treatment of diseases and conditions of the
human eye and its appendages:
Provided, That the licensee has first obtained a certificate;
(3)
(a) Administer or prescribe any drug from the drug formulary, as established by the board
pursuant to section six of this article, for use in the examination, diagnosis or treatment of diseases
and conditions of the human eye and its appendages:
Provided, That the licensee has first obtained
a certificate;
(b) New drugs and new drug indications may be added to the drug formulary by approval of the board;
(4) Administer epinephrine by injection to treat emergency cases of anaphylaxis or
anaphylactic shock;
(5) Prescribe and dispense contact lenses that contain and deliver pharmaceutical agents and
that have been approved by the Food and Drug Administration as a drug;
Provided, That the licensee
has first obtained a certificate and satisfied all requirements as set out in legislative rule;
(6) Prescribe, fit, apply, replace, duplicate or alter lenses, prisms, contact lenses, orthoptics,
vision training, vision rehabilitation;
(7) Perform the following procedures:
(A) Remove a foreign body from the ocular surface and adnexa utilizing a non-intrusive
method;
(B) Remove a foreign body, external eye, conjunctival, superficial, using topical anesthesia;
(C) Remove embedded foreign bodies or concretions from conjunctiva, using topical
anesthesia, not involving sclera;
(D) Remove corneal foreign body not through to the second layer of the cornea using topical
anesthesia;
(E) Epilation of lashes by forceps;
(F) Closure of punctum by plug; and
(G) Dilation of the lacrimal puncta with or without irrigation;
(8) Furnish or provide any prosthetic device to correct or relieve any defects or abnormal conditions of the human eye and its appendages;
(9) Order laboratory tests rational to the examination, diagnosis, and treatment of a disease
or condition of the human eye and its appendages;
(10) Use a diagnostic laser; and
(11) A licensee is also permitted to perform those procedures authorized by the board prior
to January 1, 2010.
(b)
An A licensee may not:
(1) Perform surgery
except as provided in this article, by legislative rule or by joint written
agreement between the board and the Board of Medicine;
(2) Use a therapeutic laser
: Provided, That a licensee, who has the proper training as
determined by the board, may use Argon Laser Trabeculoplasty procedures, Selective Laser
Trabeculoplasty procedures and Peripheral Iridotomy procedures in the treatment of glaucoma when
such licensee is working in a collaborative arrangement with an ophthalmologist: Provided, however,
That a licensee who observes progressive vision loss in a patient shall refer that patient to an
ophthalmologist;
(3) Use
Schedule I and Schedule II controlled substances;
(4) Treat systemic disease; or
(5) Present to the public that he or she is a specialist in surgery of the eye.
§30-8-10. Exceptions.
The following persons are exempt from licensure under this article:
(1) Persons licensed to practice medicine and surgery under article three of this chapter or
osteopathy under article fourteen of this chapter;
(2) Persons and business entities who sell or
manufacturer manufacture ocular devices in a
permanently established place of business, who neither practice nor attempt to practice optometry.
§30-8-11. Issuance of license; renewal of license; renewal fee; display of license.
(a) A licensee shall annually or biennially on or before July 1, renew his or her license by
completing a form prescribed by the board, paying the renewal fee and submitting any other
information required by the board.
(b) The board shall charge a fee for renewal of a license, and a late fee for any renewal not
paid by the due date.
(c) The board shall require as a condition of renewal of a license that each licensee complete
continuing education.
(d) The board may deny an application for renewal for any reason which would justify the
denial of an original application for a license.
§30-8-12. Temporary permits.
(a) Upon proper application and the payment of a fee, the board may issue, without
examination, a temporary permit to engage in the practice of optometry in this state.
(b) If the
permiteepermittee receives a passing score on the examination, a temporary permit
expires thirty days after the
permiteepermittee receives the results of the examination.
(c)If the
permitee permittee receives a failing score on the examination, the temporary permit expires immediately.
(d) An applicant under this subsection may only be issued one temporary permit. Upon the
expiration of a temporary permit, a person may not practice as an optometrist until he or she is fully
licensed under the provisions of this article. In no event may a
permitee permittee practice on a
temporary permit beyond a period of ninety consecutive days.
(e) A temporary
permitee permittee under this section shall work under the supervision of
a licensee, with the scope of such supervision to be defined by the board by legislative rule.
§30-8-13. License from another jurisdiction; license to practice in this state.
(a) The board may issue a license to practice to an applicant of good moral character who
holds a valid license or other authorization to practice optometry from another jurisdiction, if the
applicant demonstrates that he or she:
(1) Holds a license or other authorization to practice optometry in another state which
requirements are substantially equivalent to those required in this state;
(2) Does not have charges pending against his or her license or other authorization to
practice, and has never had a license or other authorization to practice revoked;
(3) Has not previously failed an examination for professional licensure in this state;
(4) Has paid the applicable fee;
(5) Has passed the examination prescribed by the board; and
(6) Has fulfilled any other requirement specified by the board.
(b) In its discretion, the board may interview and examine an applicant for licensing under this section. The board may enter into agreements for reciprocal licensing with other jurisdictions
having substantially similar requirements for licensure.
§30-8-14. Prescriptive authority.
(a) A licensee may prescribe: (1) topical pharmaceutical agents, (2) oral pharmaceutical
agents that are included in the drug formulary established by the board pursuant to section six of this
article
or new drugs or new drug indications added by a decision of the board, and (3) contact lenses
that contain and deliver pharmaceutical agents that have been approved by the Food and Drug
Administration as a drug
, only if the licensee has first obtained a certificate from the board.
(b)
To obtain a certificate from the board, An applicant must:
(1) Submit a completed application;
(2) Pay the appropriate fee;
(3) Show proof of current liability insurance coverage;
(4) Complete the board required training;
(5) Pass an examination; and
(6) Complete any other criteria the board may establish by rule.
c) Certificates shall be issued to coincide with the applicant's (licensing period.
§30-8-15. Administration of injectable pharmaceutical agents
(a) A licensee may not administer pharmaceutical agents by injection, other than epinephrine
to treat emergency cases of anaphylaxis or anaphylactic shock, unless the provisions of this section,
along with any legislative rule promulgated pursuant to this section, have been met.
(b) Additional pharmaceutical agents by injection may be included by agreement between
the board and the Board of Medicine or the board may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-nine-a of this code. These rules shall
provided provide, at a minimum, for the following:
(1) Establishment of a course, or provide a list of approved courses, in administration of
pharmaceutical agents by injection;
(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate
observation for an adverse reaction of an individual following the administration of a pharmaceutical
agent by injection;
(3) A requirement that a licensee shall have completed a board approved injectable
administration course and completed an American Red Cross or American Heart Association basic
life-support training, and maintain certification in the same;
(4) Continuing education requirements for this area of practice;
(5) Reporting requirements for licensees administering pharmaceutical agents by injection
to report to the primary care physician or other licensed health care provider as identified by the
person receiving the pharmaceutical agent by injection;
(6) Reporting requirements for licensees administering pharmaceutical agents by injection
to report to the appropriate entities;
(7) That a licensee may not delegate the authority to administer pharmaceutical agents by
injection to any other person; and
(8) Any other provisions necessary to implement the provisions of this section.
(c) In no event may a licensee be granted authority under this section to administer a
pharmaceutical agent by injection directly into the globe of the eye.
§30-8-16. Special volunteer license; civil immunity for voluntary services rendered to
indigents.
(a) There is established a special volunteer license for optometrists who are retired or are
retiring from the active practice of optometry and wish to donate their expertise for the care and
treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part,
for the delivery of health care services without charge.
(b) The special volunteer license shall be issued by the board to optometrists licensed or
otherwise eligible for licensure under this article without the payment of an application fee, license
fee or renewal fee, and shall be issued for the remainder of the licensing period, and renewed
consistent with the boards other licensing requirements.
(c) The board shall develop application forms for the special volunteer license provided in
this section which shall contain the optometrist's acknowledgment that:
(1) The optometrist's practice under the special volunteer license will be exclusively devoted
to providing optometrical care to needy and indigent persons in West Virginia;
(2) The optometrist will not receive any payment or compensation, either direct or indirect,
or have the expectation of any payment or compensation, for any optometrical services rendered
under the special volunteer license;
(3) The optometrist will supply any supporting documentation that the board may reasonably
require; and
(4) The optometrist agrees to continue to participate in continuing education as required by
the board for a special volunteer license.
(d) Any optometrist who renders any optometrical service to indigent and needy patients of
a clinic organized, in whole or in part, for the delivery of health care services without charge, under
a special volunteer license authorized under this section without payment or compensation or the
expectation or promise of payment or compensation is immune from liability for any civil action
arising out of any act or omission resulting from the rendering of the optometrical service at the
clinic unless the act or omission was the result of the optometrist's gross negligence or willful
misconduct. In order for the immunity under this subsection to apply, before the rendering of any
services by the optometrist at the clinic, there must be a written agreement between the optometrist
and the clinic stating that the optometrist will provide voluntary uncompensated optometrical
services under the control of the clinic to patients of the clinic before the rendering of any services
by the optometrist at the clinic:
Provided, That any clinic entering into such written agreement is
required to maintain liability coverage of not less than $1 million per occurrence.
(e) Notwithstanding the provisions of subsection (d) of this section, a clinic organized, in
whole or in part, for the delivery of health care services without charge is not relieved from imputed
liability for the negligent acts of an optometrist rendering voluntary optometrical services at or for
the clinic under a special volunteer license under this section.
(f) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure in this article except the fee requirements.
(g) Nothing in this section may be construed as requiring the board to issue a special
volunteer license to any optometrist whose license is or has been subject to any disciplinary action
or to any optometrist who has surrendered a license or caused such license to lapse, expire and
become invalid in lieu of having a complaint initiated or other action taken against his or her license,
or who has elected to place a license in inactive status in lieu of having a complaint initiated or other
action taken against his or her license, or who has been denied a license.
(h) Any policy or contract of liability insurance providing coverage for liability sold, issued
or delivered in this state to any optometrist covered under the provisions of this article shall be read
so as to contain a provision or endorsement whereby the company issuing such policy waives or
agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim
covered by the terms of such policy within the policy limits, the immunity from liability of the
insured by reason of the care and treatment of needy and indigent patients by an optometrist who
holds a special volunteer license.
§30-8-17. Optometric business entities.
(a) Only licensees may own a business entity that practices optometry.
(b) A licensee may be employed by the business entity.
(c) A business entity shall cease to engage in the practice of optometry when it is not wholly
owned by licensees:
Provided, That the personal representative of a deceased shareholder shall have
a period, not to exceed eighteen months from the date of such shareholder's death, to dispose of such
shares.
§30-8-18. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The board may upon its own motion based on credible information, and shall upon the
written complaint of any person cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the
complaint to the licensee, certificate holder or
permitee permittee.
(c) After reviewing any information obtained through an investigation, the board shall
determine if probable cause exists that the licensee or
permitee permittee has violated subsection (g)
of this section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or
permitee permittee has
violated subsection (g) of this section or rules promulgated pursuant to this article, the board may
enter into a consent decree or hold a hearing for the suspension or revocation of the license,
certificate or permit or the imposition of sanctions against the licensee, certificate holder or
permitee
permittee. Any hearing shall be held in accordance with the provisions of this article, and the
provisions of articles five and six, chapter twenty-nine-a of this code.
(e) Any member of the board or the executive secretary of the board may issue subpoenas and
subpoenas duces tecum
on behalf of the board to obtain testimony and documents to aid in the
investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive secretary may sign a consent decree or other
legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend
or revoke the license, certificate or permit of, impose probationary conditions upon or take
disciplinary action against, any licensee, certificate holder or
permitee permittee for any of the
following reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license, certificate or permit by fraud, misrepresentation or concealment of
material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk;
(4) Intentional violation of a lawful order;
(5) Having had an authorization to practice optometry revoked, suspended, other disciplinary
action taken, by the proper authorities of another jurisdiction;
(6) Having had an application to practice optometry denied by the proper authorities of
another jurisdiction;
(7) Exceeded the scope of practice of optometry;
(8) Aiding or abetting unlicensed practice;
(9) Engaging in an act while acting in a professional capacity which has endangered or is
likely to endanger the health, welfare or safety of the public; or
(10) False and deceptive advertising; this includes, but is not limited to, the following:
(A) Advertising 'free examination of eyes,' or words of similar import and meaning; or
(B) Advertising frames or mountings for glasses, contact lenses, or other optical devices which does not accurately describe the same in all its component parts
.; or
(c) Advertising or marketing as an optometric physician if such term was not in the practice
name prior to January 1, 2010.
(h) For the purposes of subsection (g) of this section disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or certificate holders to report to the board for periodic interviews
for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public,
including advising other parties whose legitimate interests may be at risk.
§30-8-19. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct
the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing
he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board
may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the authority to administer oaths,
examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee, certificate holder or
permitee
permittee has violated the provisions of this article or the board's legislative rules, a formal written
decision shall be prepared which contains findings of fact, conclusions of law and a specific
description of the disciplinary actions imposed.
§
30-8-20. Judicial review.
Any licensee, certificate holder or
permitee permittee adversely affected by a decision of the
board entered after a hearing may obtain judicial review of the decision in accordance with section
four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from
judicial review in accordance with article six, chapter twenty-nine-a of this code.
§
30-8-21. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason
to believe that a licensee, certificate holder or
permiteepermittee has committed a criminal offense
under this article, the board may bring its information to the attention of an appropriate law-
enforcement official.
(b) A person violating section one of this article is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than
$500$1,000 nor more than
$1000 $5,000 or confined in jail not more than six months, or both fined and confined.
§30-8-22. Single act evidence of practice.
In any action brought or in any proceeding initiated under this article, evidence of the
commission of a single act prohibited by this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general course of conduct."
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 305),
and there were--yeas 80, nays 18, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Armstead, Beach, Brown, Craig, Crosier, Fleischauer, Guthrie, Hatfield, Hutchins,
Lane, Marshall, Martin, C. Miller, Moore, Morgan, Poore, Rowan and Shook.
Absent And Not Voting: Argento and Cann.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 230) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 612, Authorizing Governor certify certain capital improvement projects' lists; on third
reading, coming up in regular order, with the right to amend, was reported by the Clerk.
On motion of Delegate White, the bill was amended on page fifteen, following line two
hundred seventy-one, by striking out section eighteen-a in its entirety and inserting in lieu thereof a new section eighteen-c, to read as follows:
"§29-22-18c. Increase in allocation to Higher education Improvement Fund from State Excess
Lottery Revenue Fund.
Notwithstanding any provision of subsection (d), section eighteen-a of this article to the
contrary, the deposit of $10 million into the Higher Education Improvement Fund for Higher
Education set forth above is for the fiscal year beginning July 1, 2009, only. For the fiscal year
beginning July 1, 2010, and subsequent fiscal years, the commission shall deposit $15 million into
the Higher Education Improvement Fund for Higher Education."
And,
On page two, following the enacting clause, by striking out the enacting section in its entirety
and inserting in lieu thereof a new enacting section to read as follows:
"That §29-22-18 of the Code of West Virginia, 1931, as amended, be amended and
reenacted; that said code be amended by adding thereto a new section, designated §29-22-18c; and
that §31-15-16a of said code be amended and reenacted, all to read as follows:"
There being no further amendments, the bill was read a third time.
On motion of Delegate White, the title of the bill was amended to read as follows:
S. B. 612 - "A Bill to amend and reenact §29-22-18 of the Code of West Virginia, 1931, as
amended; to amend said code by adding thereto a new section, designated §29-22-18c; and to amend
and reenact §31-15-16a of said code, all relating to funding of higher education capital projects;
authorizing the Governor to certify certain revised lists of capital improvement projects; authorizing the Economic Development Authority to issue bonds in certain amounts and for certain purposes;
specifying that the Economic Development Authority may grant second-in-priority and third-in-
priority liens on proceeds of the State Lottery Fund up to a certain amount in favor of the bonds;
increasing the amount paid annually to the Higher Education Improvement Fund from $10 million
to $15 million; and making other technical corrections."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 307), 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: Argento and Cann.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 612) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
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
Com. Sub. for H. B. 4166, Expanding the age for firefighters over thirty-five years of age
for persons already employed by another paid fire department.
On motion of Delegate Boggs, the House of Delegates refused to recede from its amendment and requested the Senate to agree 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 Michael, Skaff and Hamilton.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At 1:13 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 3:30 p.m.,
and reconvened at that time.
* * * * * * *
Afternoon Session
* * * * * * *
Special Calendar
Third Reading
Com. Sub. for S. B. 515, Relating to firearms purchases and licensing; on third reading,
coming up in regular order, with an amendment pending and the further right to amend, was reported
by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
on page two, following the enacting clause, by striking out the remainder of the bill and inserting in
lieu thereof the following language:
"That §61-7-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted,
to read as follows:
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-10. Display of deadly weapons for sale or hire; sale to prohibited persons; penalties.
(a)(1)
It shall be is unlawful for any A person
to may not publicly display and offer for rent
or sale, or, where the person is other than a natural person, to knowingly permit an employee thereof
to publicly display and offer for rent or sale, to any passers by on any street, road or alley, any deadly
weapon. machine gun, submachine gun or other fully automatic weapon, any rifle, shotgun or
ammunition for same.
(2) Any person violating the provisions of this subsection shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than
five thousand dollars $5,000 or shall be
confined in the county jail for not more than one year, or both fined and confined, except that where
the person violating the provisions of this subsection is other than a natural person, such person shall
be fined not more than
ten thousand dollars $10,000.
(b)(2)(3) It shall be unlawful for any A person
to may not knowingly sell, rent, give or lend,
or, where the person is other than a natural person, to knowingly permit an employee thereof to
knowingly sell, rent, give or lend, any
deadly weapon firearm or ammunition to a person prohibited
from possessing
same firearm or ammunition by any provision of this article
or by 18 U.S.C. §922(g)
or (n) or other applicable federal law.
(2)(4) Any person
violating the provisions of who violates any of the provisions of subsection
(2)of this
subsection shall be section is guilty of a felony and, upon conviction thereof, shall be fined not more than
twenty-five thousand dollars $100,000, or shall be imprisoned
in the penitentiary of
this state in a state correctional facility for a definite term of years of not less than three years nor
more than ten years, or both fined and imprisoned, except that where the person
violating the
provisions of committing an offense punishable under this subsection is other than a natural person,
such person shall be fined not more than
fifty thousand dollars $250,000.
(5) Any person who knowingly solicits, persuades, encourages or entices a licensed dealer
or private seller of firearms or ammunition to transfer a firearm or ammunition under circumstances
which the person knows would violate the laws of this state or the United States is guilty of a felony.
Any person who willfully procures another to engage in conduct prohibited by this subsection shall
be punished as a principal. This subsection does not apply to a law-enforcement officer acting in his
or her official capacity."
On motion of Delegate Miley the Judiciary Committee amendment was amended on page
one, section ten, line thirteen, immediately following the word "of" by striking out the words "this
subsection" and inserting in lieu thereof the words "subsection (1) of this section".
On page two, section ten, line seven, immediately following the word "subsection" by
striking out "(2)" and inserting in lieu thereof "(3)";.
And,
On page three, section ten, line one, immediately following the sentence ending in the word
"capacity", by adding the following sentence: "Any person who violates the provisions of section
five of subsection (5) of this section is guilty of a felony, and upon conviction thereof, shall be fined
not more than $5,000, imprisoned in a state correctional facility for a definite term of not less than one year nor more than five years, or both fined and imprisoned."
On motion of Delegate Miley, the Judiciary Committee Amendment was amended on page
one, section ten, line thirteen, immediately following the word "of", by striking out the words "this
subsection" and inserting in lieu thereof the words "subsection (1) of this section".
On page two, section ten, line seven, immediately following the word "subsection" by
striking out "(2)" and inserting in lieu thereof "(3)".
And,
On page three, section ten, line one, immediately following the sentence ending in the word
"capacity", by adding the following sentence: "Any person who violates the provisions of section
five of subsection (5) of this section is guilty of a felony, and upon conviction thereof, shall be fined
not more than $5,000, imprisoned in a state correctional facility for a definite term of not less than
one year nor more than five years, or both fined and imprisoned."
The Judiciary Committee amendment, as amended, was then adopted.
There being no further amendments, the bill was read a third time.
Delegate Hall requested to be excused from voting on the passage of
Com. Sub. for S. B.
515 under the provisions of House Rule 49.
The Speaker replied that the Delegate was a member of a class of persons possibly to be
affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and
refused to excuse the Gentleman from voting.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 308), and there were--yeas 89, nays 6, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: Brown, Doyle, Guthrie, Hatfield, McGeehan and Wells.
Absent And Not Voting: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 515) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 515 - "A Bill to amend and reenact §61-7-10 of the Code of West
Virginia, 1931, as amended, relating to the unlawful purchase or sale firearms prohibiting the
purchase or attempt to purchase a firearm from a firearm dealer by certain persons; increasing fines
and penalties for certain offenses; creating a felony offense for a person who knowingly solicits,
persuades, encourages or entices a firearm or ammunition dealer or private seller to sell or transfer
a firearm or ammunition under circumstances which would violate the laws of this State; making it
a felony offense to procur another to knowingly solicit, persuade, encourage or entice a firearm or
ammunition under circumstances which would violate the laws of this State; providing an exception
for a law-enforcement officer acting in his or here official capacity; and establishing criminal
penalties."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4025, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution; on third reading, coming
up in regular order, with the right to amend, was, at the request of Delegate Boggs, and by
unanimous consent, passed over temporarily.
Com. Sub. for S. B. 213, Budget Bill; on third reading, coming up in regular order, with the
right to amend, was reported by the Clerk.
On motion of Delegate White, the bill was amended on page one, following the enacting
clause, by striking out the remainder of the bill and inserting in lieu thereof the provisions of Eng.
Com. Sub. for H. B. 4025.
There being no further amendments, the bill was read a third time.
On the passage of the bill, the yeas and nays were taken
(Roll No. 309), and there were--yeas
88, nays 6, absent and not voting 6, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Cowles, Lane, J. Miller and Overington.
Absent And Not Voting: Argento, Beach, Cann, Hutchins, Moore and Ross.
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 S. B. 213) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 310), 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: Argento, Beach, Cann, Hutchins, Moore and Ross.
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. 213) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 229, Authorizing School Building Authority issue certain outstanding
bonds; 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. 311),
and there were--yeas 93, nays 1, absent and not voting 6, with the nays and absent and not voting
being as follows:
Nays: Cowles.
Absent And Not Voting: Argento, Beach, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 229) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for Com. Sub. for S. B. 229 -- "A Bill to amend and reenact §18-9D-4b, §18-
9D-6 and §18-9D-8 of the Code of West Virginia, 1931, as amended, all relating to authorizing the
School Building Authority to issue bonds in the maximum aggregate amount of $500 million
outstanding at any time; authorizing the School Building Authority to receive and expend federal
subsidies received with respect to bonds issued by the School Building Authority; authorizing the
expenditure of surpluses in certain debt service funds; requiring that copies of resolutions authorizing revenue bonds be provided to the Governor, the President of the Senate and the Speaker of the House
of Delegates; changing the persons required to sign the bonds; and removing obsolete provisions."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 312), 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: Argento, Cann, Hutchins, Moore and Ross.
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. 229) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 237, Authorizing issuance of revenue bonds for public projects; on third reading,
coming up in regular order, with the right to amend, was reported by the Clerk.
On motion of Delegate White, the bill was amended on page twenty-three, section twenty-
seven, line thirty-one, following the words "being divided", by striking out the word "equally" and
inserting in lieu thereof the words "on a pro rata basis".
And,
On page thirty, section twenty-seven, line one hundred sixty-nine, following the words "being
divided", by striking out the word "equally" and inserting in lieu thereof the words "on a pro rata
basis".
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 313), and there were--yeas 70, nays 25, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Blair, Border, Carmichael, Cowles, Ellem,
Evans, Hamilton, Ireland, Lane, Louisos, McGeehan, C. Miller, J. Miller, Overington, D. Poling,
Porter, Romine, Schoen, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 237) passed.
On motion of Delegate White, the title of the bill was amended to read as follows:
S. B. 237- "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto
a new article, designated §13-2H-1, §13-2H-2, §13-2H-3, §13-2H-4, §13-2H-5, §13-2H-6, §13-2H-7,
§13-2H-8, §13-2H-9, §13-2H-10, §13-2H-11 and §13-2H-12; and to amend and reenact §29-22C-27
of said code, all relating to funding distributions from state lottery revenues generally; providing
authorization for municipalities, county commissions and certain boards of education to issue
revenue bonds secured by lottery revenue for the purpose of acquiring or constructing public
projects; and changing the allocation of a certain distribution from the lottery racetrack table games
fund to the purse funds of the thoroughbred racetracks from an equal allocation among the tracks to
a pro rata distribution."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 314), and there were--yeas 75, nays 20, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Border, Carmichael, Cowles, Ellem, Hamilton, Ireland, Louisos,
McGeehan, C. Miller, J. Miller, Overington, D. Poling, Porter, Romine, Schoen, Sobonya, Sumner
and Walters.
Absent And Not Voting: Argento, Cann, Hutchins, Moore and Ross.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 237) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 507, Creating WV Innovative Mine Safety Technology Tax Credit Act;
on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 315),
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: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 507) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 567, Creating Nonprofit Adventure and Recreational Responsibility Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 316),
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: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 567) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 407, Authorizing Department of Revenue promulgate legislative rules;
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. 317),
and there were--yeas 84, nays 11, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Lane, Louisos, McGeehan, C. Miller, J. Miller, Porter, Romine,
Sobonya and Walters.
Absent And Not Voting: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 407) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 318), and there were--yeas 84, nays
11, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Lane, Louisos, McGeehan, C. Miller, J. Miller, Porter, Sobonya,
Sumner and Walters.
Absent And Not Voting: Argento, Cann, Hutchins, Moore and Ross.
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. 407) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 183, Creating Diesel-Powered Motor Vehicle Idling Act; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 319),
and there were--yeas 71, nays 24, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Azinger, Beach, Blair, Border, Cowles, Evans,
Ireland, Lane, Louisos, Mahan, McGeehan, J. Miller, Overington, Porter, Romine, Schadler, Schoen,
Shaver, Shott and Walters.
Absent And Not Voting: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 183) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 183 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §17C-13A-1, §17C-13A-2, §17C-13A-3, §17C-13A-4,
§17C-13A-5, §17C-13A-6, §17C-13A-7, §17C-13A-8 and §17C-13A-9, all relating to prohibiting
diesel-powered motor vehicles from excessive idling; defining terms; placing restrictions on idling;
providing exceptions to idling restrictions; allowing for weight adjustments for idle reduction
technology; establishing a misdemeanor offense of excessive idling on the owners and operators of
the vehicles in violation of the idling restrictions; establishing a misdemeanor offense for the
allowance of excessive idling in violation of the idling restrictions by owners and operators of a
location where such vehicles load, unload or park; providing criminal penalties; requiring the owner
or operation of certain locations to post notice of the idling restrictions; providing for notice of
offense to the vehicle owner of driver convictions for offenses; providing for enforcement by any
member of the division of public safety, any sheriff or deputy sheriff, any member of a municipal
police department and any designated officers of the Public Service Commission; preempting local
ordinances; and allowing for additional regulation of motor vehicle emissions by the Division of
Environmental Protection."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 446, Clarifying deceased public employees' survivors participate in
comprehensive group health insurance plans only; 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. 320),
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: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 446) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 446 - "A Bill to amend and reenact §5-16-13 of the Code of West
Virginia, 1931, as amended, relating to clarifying that the surviving spouse and dependents of a
deceased public employee participating in a plan of the Public Employees Insurance Agency may
only participate in comprehensive group health insurance coverage provided by the Public
Employees Insurance Agency."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 494, Providing fiduciary commissioner oversight; on third reading,
coming up in regular order, with an amendment pending and the further right to amend, was reported
by the Clerk.
An amendment, recommended by the Committee on the Judiciary , was reported by the Clerk
on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §44-3-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that §44-3A-35 of said code be amended and reenacted, and that §51-10A-4 be amended and
reenacted, all to read as follows:
CHAPTER 44. ADMINISTRATION OF ESTATES & TRUSTS
§44-3-1. Fiduciary commissioners.
The office previously known as commissioner of accounts is hereby abolished. The office
of fiduciary commissioner is hereby created and any reference in this code to a commissioner of
accounts shall, after the effective date of this section, mean fiduciary commissioner. Fiduciary
commissioners shall be attorneys admitted to the practice of law in this state, or shall meet the
qualifications of fiduciary supervisors as set forth in article three-a of this chapter:
Provided, That
persons who are serving as commissioners of accounts upon the effective date of this article shall
be continued in office as fiduciary commissioners for not more than one year from the effective date
of this article for the purpose of settling estates not settled on the effective date of this article.
The county commission of each county shall appoint not more than four fiduciary
commissioners. In counties in which there exists a separate tribunal for police and fiscal purposes,
that tribunal shall appoint the fiduciary commissioners. In either case, not more than two of the
fiduciary commissioners may be from the same political party.
The fiduciary commissioner shall report to and settle accounts with the county clerk. On or
before the last day of March, June, September and December, the fiduciary commissioner shall file
with the county clerk a report on the status and disposition of every active case referred to the fiduciary commissioner. In the next succeeding term of the county commission, the county clerk
shall provide a copy of the report to the county commission, and shall inform the county commission
of any cases referred to a fiduciary commissioner in which the fiduciary commissioner has not
fulfil1ed duties relating to the case in accordance with deadlines established by law. The county
commission shal1 take appropriate action to ensure that all deadlines established by law will be
observed, including, if necessary, the removal of fiduciary commissioners who consistently fail to
meet such deadlines.
ARTICLE 3A. OPTIONAL PROCEDURE FOR PROOF AND ALLOWANCE OF CLAIMS
AGAINST ESTATES OF DECEDENTS; COUNTY OPTION.
§44-3A-35. Fiduciary commissioners.
The county commission of each county shall appoint not more than four fiduciary
commissioners, except that in counties in which there exists a separate tribunal for police and fiscal
purposes, such tribunal shall appoint such commissioners:
Provided, That the county commission
or such separate tribunal shall avoid reference of estates to such commissioners, unless such
reference is necessary.
The fiduciary commissioner shall report to and settle accounts with the county clerk. On or
before the last day of March, June, September and December, the fiduciary commissioner shall file
with the county clerk a report on the status and disposition of every active case referred to the
fiduciary commissioner. In the next succeeding term of the county commission, the county clerk
shall provide a copy of the report to the county commission, and shall inform the county commission
of any cases referred to a fiduciary commissioner in which the fiduciary commissioner has not fulfil1ed duties relating to the case in accordance with deadlines established by law. The county
commission shal1 take appropriate action to ensure that all deadlines established by law will be
observed, including, if necessary, the removal of fiduciary commissioners who consistently fail to
meet such deadlines.
CHAPTER 51. COURTS & THEIR OFFICERS
ARTICLE 10A. BAIL BOND ENFORCERS.
§51-10A-4. Prohibition against providing fiduciary bonds in estates; exception.
A bail bonding company or a bail bond enforcer may not provide fiduciary bonds for an
estate unless the bail bonding company or bail bond enforcer is licensed with the Insurance
Commissioner to act as an agent for an insurance company that provides surety or fiduciary bonds."
On motion of Delegate Miley, the Judiciary amendment was amended on page one, by
striking out the enacting section and inserting in lieu thereof, the following:
"That §44-3-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that §44-3A-35 of said code be amended and reenacted, and that said code be amended by adding
thereto a new section, designated §51-10A-6, all to read as follows" and a semi-colon.
And,
On page three, line twenty-two, by striking out the numbers "§51-10A-4" and inserting in
lieu thereof, the numbers "§51-10A-6".
The Judiciary Committee amendment, as amended, was then adopted.
There being no further amendments, the bill was read a third time.
Delegate Shott requested to be excused from voting on the passage of Com. Sub. for S. B.
494 under the provisions of House Rule 49.
The Speaker replied that Delegate was a member of a class of persons possibly to be affected
by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and refused
to excuse the Gentleman from voting.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 321),
and there were--yeas 94, nays 1, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 494) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 494 - "A Bill to amend and reenact §44-3-1 of the Code of West
Virginia, 1931, as amended; to amend and reenact §44-3A-35 of said code; and to amend said code
by adding thereto a new section, designated §51-10A-6; all relating to fiduciary matters; updating
references from the commissioner of accounts to the fiduciary commissioner; requiring fiduciary
commissioner to file status reports and settle accounts of certain cases with county clerks; requiring
county clerks to file the status report with county commissions; and prohibiting bail bonding
companies or bail bond enforcers from providing fiduciary bonds unless licenced by the Insurance Commissioner."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 614, Relating to PSC approval of high voltage transmission line
construction; 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. 322),
and there were--yeas 92, nays 2, absent and not voting 6, with the nays and absent and not voting
being as follows:
Nays: Andes and Craig.
Absent And Not Voting: Argento, Cann, Hutchins, Moore, Ross and Talbott.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 614) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 496, Allowing Environmental Protection Council certain rule-making
authority; on third reading, coming up in regular order, with an amendment pending and the further
right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental Protection Advisory Council.
(a) There is created within the Department of
Commerce, Labor and Environmental
Resources Protection the Environmental Protection Advisory Council. The Environmental
Protection Advisory Council consists of
seven eight members. The
director secretary serves as an
ex officio member of the council and as its chair. The remaining
six seven members are appointed
by the Governor. Each member serves for a term of four years and may be reappointed.
Of the
members of the council first appointed, two shall be appointed for terms ending on June 30, 1996,
and two each for terms ending one and two years thereafter. Vacancies on the council shall be filled
within sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries regulated by the
division
department or their trade associations. Two members shall represent organizations advocating
environmental protection. One member shall represent organizations representing local
governments. One member shall represent public service districts.
One member shall represent the
largest coal miner's labor organization in the state. In making subsequent appointments this balance
of membership shall be maintained.
(c) Appointed members shall be paid 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.
(d) The council shall meet at least once every quarter
, and at the call of the chair
or upon the unanimous request of its members.
(e) The council shall:
(1) Consult with and advise the director on program and policy development, problem
solving and other appropriate subjects;
(2) Identify and define problems associated with the implementation of the policy set forth
in section one of this article;
(3) Provide and disseminate to industry and the public early identification of major federal
program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between constituency groups;
(5) To the extent possible, strive for consensus on the development of overall environmental
policy; and
(6) Provide an annual report to the Joint Committee on Government and Finance on or before
January 1 of each year relating to its findings with regard to the
division's department's performance
during the previous year. The report will specifically address the
division's department's
performance in accomplishing the nine purposes set forth in subsection (b), section one of this
article.
(f) Notwithstanding any other provision of this code to the contrary, upon approval by
majority vote of the Environmental Protection Advisory Council's members, the council may submit
recommendations for rulemaking to the Secretary of the Department of Environmental Protection.
The Secretary shall consider the council's recommendations for rulemaking when developing agency rules to be submitted for legislative approval."
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 323),
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: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 496) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 496 -- "A Bill to amend and reenact §22-1-9 of the Code of West
Virginia, 1931, as amended, relating to the Environmental Protection Advisory Council; authorizing
the council to review and make recommendations on rulemaking to the secretary; adding a member
to the council; and requiring Department of Environmental Protection consider the council's
recommendations."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 186, Creating DOT administrative law judge office; on third reading,
coming up in regular order, was read a third time.
Delegate Wooton asked and obtained unanimous consent that the rule be suspended to permit
the offering and consideration of an amendment to the bill on third reading.
On motion of Delegates Wooton and Miley, the bill was amended on page twenty-four,
section two, line twenty-four, after the period by inserting the words "
The Office of Administrative
Hearings shall send a notice of hearing to the person whose license is at issue, the appropriate law-
enforcement officers, and the prosecuting attorney."
And,
On page twenty-five, section two, line twenty, by striking subdivisions (1), (2) and (3) in their
entirety and by striking the subdivision designation (4).
On motion of Delegate Miley, the bill was amended on page one by amending the enacting
section to read as folllows:
"That §17C-5-2 and §17C-5-7 of the Code of West Virginia, 1931, as amended be amended
and reenacted; that said code be amended by adding thereto a new section, designated §17C-5-2b;
that §17C-5A-1a, §17C-5A-2, §17C-5A-3, and §17C-5A-3a of said code be amended and reenacted;
that said code be amended by adding thereto a new article, designated §17C-5C-1, §17C-5C-2,
§17C-5C-3, §17C-5C-4 and §17C-5C-5; and that §61-11-22 and §61-11-25 of said code be amended
and reenacted, all to read as follows" and a colon.
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 324),
and there were--yeas 88, nays 5, absent and not voting 7, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Border, Lane and Sumner.
Absent And Not Voting: Argento, Cann, Hatfield, Hutchins, Moore, Ross and 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. 186) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 186 - "A Bill to amend and reenact §17C-5-2 and §17C-5-7 of the Code
of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated
§17C-5-2b; to amend and reenact §17C-5A-1a, §17C-5A-2, §17C-5A-3 and §17C-5A-3a of said
code; to amend said code by adding thereto a new article, designated §17C-5C-1, §17C-5C-2, §17C-
5C-3, §17C-5C-4 and §17C-5C-5; and to amend and reenact §61-11-22 and §61-11-25 of said code,
all relating to the motor vehicle and traffic laws of the state; procedures for conditional probation,
deferral and dismissal of criminal charges and expungement of arrest record for certain persons
charged for the first time with a non-aggravated offense of driving under the influence of alcohol
conditioned upon successful completion of the motor vehicle alcohol test and lock program;
exempting from eligibility for said conditional probation persons originally charged with any
aggravated offense of driving under the influence of alcohol, any controlled substance, or any other
drug, persons holding commercial drivers' licenses or operating a commercial vehicle, and persons
who have had their drivers' licenses previously revoked for driving under the influence of alcohol,
any controlled substance or any other drug in any jurisdiction; providing procedures for termination
of conditional probation upon violation of the terms thereof; exempting records maintained by the
division of motor vehicles from expungement; preserving criminal and administrative consequences
for any subsequent charge of driving under the influence of alcohol; amending the hearing procedures; clarifying the effect of a no contest plea on the administrative license suspension
process; requiring the state establish lawful arrest in administrative license suspension proceedings
where applicable; providing that any determination of indigence made by the Department of Health
and Human Resources for purposes of subsidized participation in the safety and treatment program
applies to subsidization of participation in the motor vehicle alcohol test and lock program; creation
of a special revenue account, known as the Department of Health and Human Resources Safety and
Treatment Fund; making a one-time transfer of monies into the fund; providing rule-making
authority; control and use of the fund by the agency; creating the Office of Administrative Hearings
within the Department of Transportation; appointment of Chief Hearing Examiner; providing for the
organization and jurisdiction of the office; setting out hearing procedures; and providing for the
transition of the hearing process from the Division of Motor Vehicles to the Office of Administrative
Hearings."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4025, Budget Bill, making appropriations of public money out of the
treasury in accordance with section fifty-one, article six of the Constitution, was reported by the
Clerk.
On motion of Delegate Boggs, the bill (Com. Sub. for H. B. 4025) was laid upon the table.
Leaves of Absence
At the request of Delegate Boggs, and by unanimous consent, leaves of absence for the day
were granted Delegates Argento and Cann.
Delegate Talbott announced that he was absent when the vote was taken on Roll No 322,
and that had he been present, he would have voted "Yea" thereon.
At 4:18 p.m., the House of Delegates adjourned until 11:00 a.m., Saturday, March 13, 2010.