ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 582
(By Senators Tomblin, Mr. President, and Caruth,
By Request of the Executive)
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[Originating in the Committee on Government Organization;
reported February 27, 2007.]
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A BILL to repeal §5A-3-38, §5A-3-39, §5A-3-40, §5A-3-40a and
§5A-3-41 of the Code of West Virginia, 1931, as amended; to
repeal §20-1A-1, §20-1A-2, §20-1A-3, §20-1A-4, §20-1A-5,
§20-1A-6, §20-1A-8 and §20-1A-9 of said code; to amend said
code by adding thereto a new article, designated §5A-10-1,
§5A-10-2, §5A-10-3, §5A-10-4, §5A-10-5, §5A-10-6, §5A-10-7,
§5A-10-8, §5A-10-9, §5A-10-10 and §5A-10-11; to amend said
code by adding thereto a new article, designated §5A-11-1,
§5A-11-2, §5A-11-3, §5A-11-4, §5A-11-5, §5A-11-6, §5A-11-7 and
§5A-11-8; to amend and reenact §5F-2-1 and §5F-2-2 of said
code; and to amend and reenact §20-1-7 of said code, all
relating to the creation of the Real Estate Division in the
Department of Administration; providing the Real Estate
Division approval of leases; exempting the acquisition and
management of public lands and streams by the Division of
Natural Resources; creating the position of Executive Director of the Real Estate Division; granting the division authority;
requiring inspection of leased or rental property; requiring
agencies to maintain and submit real estate inventory records
to the Real Estate Division; requiring review of real property
inventory; granting rule-making authority; transferring the
Public Land Corporation to the Real Estate Division;
continuing the Public Land Corporation's board of directors;
continuing the Public Land Corporation powers and duties
related to the acquisition, leasing, development, disposition
and use of public lands; requiring sales of public land to be
conducted by competitive bidding and exceptions; requiring
public hearing before the sale, lease, exchange or transfer of
land or minerals; requiring competitive bidding and notice
before the development or extraction of minerals and related
standards; and providing for the transfer and transition of
the Public Land Corporation to the Real Estate Division.
Be it enacted by the Legislature of West Virginia:
That §5A-3-38, §5A-3-39, §5A-3-40, §5A-3-40a and §5A-3-41 of
the Code of West Virginia, 1931, as amended, be repealed; that §20-
1A-1, §20-1A-2, §20-1A-3, §20-1A-4, §20-1A-5, §20-1A-6, §20-1A-8
and §20-1A-9 of said code be repealed; that said code be amended by
adding thereto a new article, designated §5A-10-1, §5A-10-2, §5A-
10-3, §5A-10-4, §5A-10-5, §5A-10-6, §5A-10-7, §5A-10-8, §5A-10-9,
§5A-10-10 and §5A-10-11; that said code be amended by adding
thereto a new article, designated §5A-11-1, §5A-11-2, §5A-11-3,
§5A-11-4, §5A-11-5, §5A-11-6, §5A-11-7 and §5A-11-8; that §5F-2-1
and §5F-2-2 of said code be amended and reenacted; and that §20-1-7
of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 10. REAL ESTATE DIVISION.
§5A-10-1. Division created; purpose; director.
(a) There is hereby created the Real Estate Division within
the Department of Administration for the purpose of establishing a
centralized office to provide leasing, appraisal and other real
estate services to the Secretary of the Department of
Administration.
(b) The division shall be under the supervision and control of
an executive director, who shall be appointed by the Governor, by
and with the advice and consent of the Senate.
(c) Candidates for the position of executive director shall:
(1) Have at least a bachelor of arts or science degree from an
accredited four-year college or university; and
(2) (A) Be a licensed real estate broker, pursuant to the
provisions of article forty, chapter thirty of this code; or
(B) Be a licensed or certified real estate appraiser pursuant
to the provisions of article thirty-eight, chapter thirty of this
code; or
(3) (A) Be considered based on their demonstrated education,
knowledge and a minimum of ten years' experience in the areas of
commercial real estate leasing, commercial real estate appraisal;
or
(B) Any relevant experience of a minimum of ten years which
demonstrates an ability to effectively accomplish the purposes of
this article.
(d) The Real Estate Division is authorized to employ such
employees, including, but not limited to, real estate appraisers licensed in accordance with the provisions of article thirty-eight,
chapter thirty of this code, as may be necessary to discharge the
duties of the division.
§5A-10-2. Leases for space to be made in accordance with article;
exceptions.
(a) Notwithstanding any other provision of this code, no
department, agency or institution of state government may lease, or
offer to lease, as lessee, any grounds, buildings, office or other
space except in accordance with the provisions of this article and
article three of this chapter.
(b) The provisions of this article, except as to office space,
do not apply to:
(1) The Division of Highways of the Department of
Transportation;
(2) Public lands, rivers and streams acquired, managed or
which title is vested in or transferred to the Division of Natural
Resources of the Department of Commerce, pursuant to section seven,
article one, chapter twenty of this code and section two, article
five of said chapter;
(3) The Higher Education Policy Commission;
(4) The West Virginia Council for Community and Technical
College Education;
(5) The institutional boards of Governors in accordance with
the provisions of subsection (v), section four, article five,
chapter eighteen-b of this code;
(6) The real property held by the Department of Agriculture,
including all institutional farms, easements, mineral rights,
appurtenances, farm equipment, agricultural products, inventories, farm facilities and operating revenue funds for those operations;
or
(7) The real property held by the West Virginia Conservation
Agency, including all easements, mineral rights, appurtenances and
operating revenue funds for those operations.
§5A-10-3. Powers and duties of Real Estate Division.
The Real Estate Division has the following powers and duties:
(1) To provide leasing, appraisal and other real estate
services to state spending units;
(2) To ensure that the purchase of real estate and all
contracts for lease are based on established real estate standards
and fair market price;
(3) To develop and implement minimum lease space standards for
the lease of any grounds, buildings, office or other space required
by any spending unit of state government;
(4) To develop and implement minimum standards for the
selection and acquisition, by contract or lease, of all grounds,
buildings, office space or other space by a spending unit of state
government except as otherwise provided in this article;
(5) To establish and maintain a comprehensive database of all
state real estate contracts and leases;
(6)To develop policies and procedures for statewide real
property management;
(7) To maintain a statewide real property management system
that has consolidated real property, building and lease information
for all departments, agencies and institutions of state government;
(8) To develop and maintain a centralized repository of
comprehensive space needs for all state departments, agencies and institutions of state government, including up-to-date space and
resource utilization, anticipated needs and recommended options;
(9) To provide statewide policy leadership and coordinate
master planning to guide and organize capital asset management; and
(10) To provide assistance to all state departments, agencies
or institutions in acquiring, leasing and disposing of real
property.
§5A-10-4. Leasing of space by executive director; delegation of
authority.
The executive director is authorized to lease, in the name of
the state, any grounds, buildings, office or other space required
by any department, agency or institution of state government:
Provided, That the executive director may expressly delegate, in
writing, the authority granted to him or her by this article to the
appropriate department, agency or institution of state government
when the rental and other costs to the state do not exceed the sum
specified by regulation in any one fiscal year or when necessary to
meet bona fide emergencies arising from unforeseen causes.
§5A-10-5. Selection of grounds, etc.; acquisition by contract or
lease; long-term leases.
(a) The executive director has sole authority to select and to
acquire by contract or lease, in the name of the state, all
grounds, buildings, office space or other space, the rental of
which is necessarily required by any spending unit, upon a
certificate from the chief executive officer or his designee of
said spending unit that the grounds, buildings, office space or
other space requested is necessarily required for the proper
function of said spending unit, that the spending unit will be responsible for all rent and other necessary payments in connection
with the contract or lease and that satisfactory grounds,
buildings, office space or other space is not available on grounds
and in buildings now owned or leased by the state.
(b) The executive director shall, before executing any rental
contract or lease, 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 said premises at a price not to exceed the fair rental value
thereof.
(c) The executive director may enter into long-term agreements
for buildings, land and space for periods longer than one fiscal
year: Provided, That such long-term lease agreements are not for
periods in excess of forty years, except that the secretary may, in
the case of the Adjutant General's department, enter into lease
agreements for a term of fifty years or a specific term of more
than fifty years so as to comply with federal regulatory
requirements and shall contain, in substance, all the following
provisions:
(1) That the Department of Administration, 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,
such notice being given at least thirty days prior to the last day
of the succeeding month;
(2) That the lease shall be considered canceled without
further obligation on the part of the lessee if the state
Legislature or the federal government should fail to appropriate
sufficient funds therefor or should otherwise act to impair the lease or cause it to be canceled; and
(3) That the lease shall be considered renewed for each
ensuing fiscal year during the term of the lease unless it is
canceled by the Department of Administration before the end of the
then current fiscal year.
§5A-10-6. Long-term leases of public lands for wireless
communication towers.
(a) Notwithstanding any provision of law to the contrary, the
executive director has sole authority to negotiate and enter into
long-term lease agreements for lease of public lands to be used for
placement of wireless communication towers: Provided, That such
long-term lease agreements may not be for periods in excess of
thirty years: Provided, however, That for the governmental units
named in subsection (d) of this section, any lease proposed by the
executive director may only be entered into upon approval in
writing of the ranking administrator of the respective governmental
unit described in said subsection.
(b) All revenues derived from leases established upon the
enactment of this section shall be deposited into the General
Revenue Fund except as provided in subsections (c) and (d) of this
section.
(c) Revenues from leases initiated prior to the enactment of
this section or subsequently renewed shall continue to be treated
as they were prior to the enactment of this section.
(d) Revenues derived from the lease of property under the
control of the Department of Transportation shall be deposited into
the State Road Fund. Revenues derived from the lease of property
under the control of the Division of Natural Resources shall be retained by the Division of Natural Resources and deposited into
the appropriate fund. Revenues derived from the lease of property
under the control of the Department of Agriculture shall be
deposited into the Agriculture Fees Fund. Revenues derived from the
lease of property under the control of the Division of Forestry
shall be deposited into the Division of Forestry Fund. Revenues
derived from the lease of property under the control of
institutions of higher education shall be deposited into the
institution's education and general capital fees fund. Revenues
derived from the lease of property under the control of Higher
Education Policy Commission shall be deposited into the
commission's State Gifts Grants and Contracts Fund. Revenues
derived from the lease of property under the control of the West
Virginia Council for Community and Technical College Education
shall be deposited into the council's Tuition and Required
Educational and General Fees Fund.
(e) Any long-term lease agreement entered into pursuant to
this section shall contain provisions allowing for the nonexclusive
use of the public lands and allowance for use of the same public
space for additional towers by competing persons or corporations.
(f) The executive director is further authorized to enter into
long-term lease agreements for additional wireless communication
towers by other persons or corporations upon the same public lands
in which there already exists a lease and tower provided for under
this section.
(g) Any long-term lease agreement entered into pursuant to
this section shall be recorded in the office of the county clerk
where public land which is the subject of the lease agreement is located.
§5A-10-7. Leases and other instruments for space signed by
executive director; approval as to form; filing.
Leases and other instruments for grounds, buildings, office or
other space shall be signed by the Executive Director of the Real
Estate Division in the name of the state. They 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.
§5A-10-8. Inspection of leased property; requiring approval of
executive director for permanent changes.
(a) The executive director of the real estate division shall
inspect as necessary any property which may be under a lease or
rental agreement in order to determine whether the property is
being kept, preserved, cared for, repaired, maintained, used and
operated in accordance with the terms and conditions of the lease
or rental agreement. The executive director is authorized to take
such action necessary to correct any violation of the terms and
conditions of the lease or rental agreement.
(b) A spending unit which is granted any grounds, buildings,
office space or other space leased in accordance with the
provisions of this article may not order or make permanent changes
of any type thereto, unless the executive director of the real
estate division has first determined that the change is necessary
for the proper, efficient and economically sound operation of the
spending unit.
(c) 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 effect which cannot be economically
removed from the grounds, buildings, office space or other space
when vacated by the spending unit.
§5A-10-9. Real property accounting and records.
(a) All real property owned or leased by the state shall be
accounted for by the state spending unit that owns, leases or is in
the possession of the real property.
(b) Each state spending unit shall establish and maintain a
record of each item of real property it owns and/or leases and
annually furnish its records to the Real Estate Division.
(c) The accounting and reporting requirements of this section,
except as to office space, do not apply to:
(1) The Division of Highways of the Department of
Transportation;
(2) Public lands, rivers and streams acquired, managed or
which title is vested in or transferred to the Division of Natural
Resources of the Department of Commerce, pursuant to section seven,
article one, chapter twenty of this code and section two, article
five of said chapter;
(3) The Higher Education Policy Commission;
(4) The West Virginia Council for Community and Technical
College Education; or
(5) The institutional boards of Governors in accordance with
the provisions of subsection (v), section four, article five,
chapter eighteen-b of this code.
(d) With regard to public lands that may be by law specifically allocated to and used by any state agency,
institution, division, or department, such agency, institution,
division, or department shall provide an inventory of such public
land(s) to the public land corporation in accordance with the
provisions of article eleven of this chapter.
(e) The records furnished to the Real Estate Division shall
include the following information, if applicable:
(1) A description of each item of real property including:
(A) A reference to a book, page and/or image number from the
county records in a particular county; or
(B) A legal description;
(2) The date of purchase and the purchase price of the real
property;
(3) The date of lease and the rental costs of the real
property;
(4) The name of the state spending unit holding title to the
real property for the state;
(5) A description of the current uses of the real property and
the projected future use of the real property; and
(6) A description of each building or other improvement
located on the real property.
(f) If the description of real property required under this
section is excessively voluminous, the Real Estate Division may
direct the spending unit in possession of the real property to
furnish the description only in summary form, as agreed to by the
division and the spending unit.
§5A-10-10. Real property review.
(a) At least once every four years, the Real Estate Division shall review the inventory of real property for each state spending
unit submitted pursuant to this article to verify the accuracy of
the inventory records.
(b) Based on the review of the inventory of real property, the
Real Estate Division shall:
(1) Identify any real property owned or leased by the state
that is not being used or that is being substantially underused;
(2) Make recommendations to the Governor and the Secretary of
the Department of Administration regarding the use of real
property, which shall include:
(A) An analysis of the highest and best use to which the real
property may legally be placed; and
(B) An analysis of alternative uses of the real property
addressing the potential for any other transaction or use that the
Real Estate Division determines to be in the best interest of the
state; and
(3) Submit to the Governor and the Secretary of the Department
of Administration any information pertinent to the evaluation of a
potential transaction involving the real property, including:
(A) An evaluation of any proposals received from private
parties that would be of significant benefit to the state; and
(B) The market value of such real property.
§5A-10-11. Rulemaking.
The executive director shall propose rules for legislative
approval, in accordance with the provisions of article three,
chapter twenty-nine-a of this code, to implement and enforce the
provisions of this article.
ARTICLE 11. PUBLIC LAND CORPORATION.
§5A-11-1. Public Land Corporation.
(a) The Public Land Corporation, heretofore created and
established as a unit of the Division of Natural Resources, is
hereby continued and established as a unit of the Real Estate
Division of the Department of Administration.
(b) The corporation is a public benefit corporation and an
instrumentality of the state and may sue or be sued, contract and
be contracted with, plead and be impleaded, have and use a common
seal.
(c) The corporation is vested with the title of the state of
West Virginia in public lands, the title to which now is or may
hereafter become vested in the State of West Virginia by reason of
any law governing the title of lands of the state: Provided, That
those lands for which title is specifically vested by law in other
state agencies, institutions and departments shall continue to be
vested in such state agencies, institutions and departments.
(d) The provisions of this article do not apply to:
(1) The State of West Virginia's interest in the rivers,
streams, creeks or beds thereof and all other public lands managed
or acquired by the Division of Natural Resources pursuant to the
provisions of section seven, article one, chapter twenty of this
code and section two, article five, chapter twenty of this code,
the title to all of which shall collectively be transferred to and
vested in the Division of Natural Resources for the use and
enjoyment of the citizens of the state; or
(2) Public lands acquired by the Division of Forestry pursuant
to article one-a, chapter nineteen of this code.
§5A-11-2. Corporation boards of directors, members, expenses, appointment, terms, qualifications; director as board
chairman; meetings, quorum; executive secretary, secretary to
board; professional and support staff; execution of legal
documents, permits and licenses.
(a) The Public Land Corporation is governed by a board of
directors comprised of six members of which four shall be ex
officio and two shall be appointed by the Governor. The members of
the board shall receive no compensation for their service thereon.
The board members who are not ex officio shall be reimbursed by the
Secretary of the Department of Administration for their actual and
necessary expenses incurred pursuant to their duties under this
article from funds authorized for such purposes.
(b) The following serve as ex officio members of the board:
(1) The executive director of the Real Estate Division or a
designee, who shall serve as chair;
(2) The director of the Division of Natural Resources or a
designee;
(3) The commissioner of the Department of Culture and History
or a designee; and
(4) The secretary of the Department of Administration, or a
designee.
(c) The Governor shall appoint, by and with the advice and
consent of the Senate, two members with a demonstrated interest and
knowledge in the conservation and protection of the aesthetic,
biological, geological, historical, archeological, cultural or
recreational values of the public lands of the state. The terms
are for four years and no member may serve more than two
consecutive terms. The members on the Board as of the first day of January, two thousand seven, shall continue to serve until their
term has expired and may be reappointed.
(d) A majority of the board constitutes a quorum for the
transaction of business. The board shall meet at such times and
places as it may determine and shall meet on call of the chair. It
shall be the duty of the chair to call a meeting of the board on
the written request of any three members.
(e) The Executive Director of the Real Estate Division shall
appoint and supervise an executive secretary of the public land
corporation, and may employ other necessary professional and
support staff for the purposes of this article, who shall be
employees of the Department of Administration with merit system
status.
(f) An affirmative vote of a majority of the members of the
corporation is required for any action of the corporation with
respect to the sale or exchange of public lands or for the issuance
of a lease or contract for the development of minerals, oil or gas.
All actions must be taken at a scheduled meeting of the corporation
held in compliance with the provisions of article nine-a, chapter
six of this code.
(g) The powers and duties of the corporation are nondelegable,
except that the executive secretary may negotiate and enter into
preliminary agreements on behalf of the corporation, and shall,
upon authorization of the corporation, be entitled to engage in
valid actions of the corporation in respect of day-to-day
administrative activities. An agreement entered into by the
executive secretary on behalf of the corporation is not valid until
such agreement is approved by an affirmative vote of a majority of the corporation.
§5A-11-3. Public Land Corporation, powers and duties.
(a)The corporation is hereby authorized and empowered to:
(1) Acquire from any persons or the State Auditor or any
local, state or federal agency, by purchase, lease or other
agreement, any lands necessary and required for public use;
(2)Acquire by purchase, condemnation, lease or agreement,
receive by gifts and devises or exchange, rights-of-way, easements,
waters and minerals suitable for public use;
(3)Sell or exchange public lands where it is determined that
the sale or exchange of such tract meets any or all of the
following disposal criteria:
(A)The tract was acquired for a specific purpose and the
tract is no longer required for that or any other state purpose;
(B)Disposal of the tract serves important public objectives
including, but not limited to, expansion of communities and
economic development which cannot be achieved on lands other than
public lands and which clearly outweigh other public objectives and
values including, but not limited to, recreation and scenic values
which would be served by maintaining the tract in state ownership;
or
(C)The tract, because of its location or other
characteristics, is difficult and uneconomic to manage as part of
the public lands and is not suitable for management by another
state department or agency.
(4)Sell, purchase or exchange lands or stumpage for the
purpose of consolidating lands under state or federal government
administration subject to the disposal criteria specified in subdivision (3) of this subsection;
(5)Negotiate and effect loans or grants from the government
of the United States or any agency thereof for acquisition and
development of lands as may be authorized by law to be acquired for
public use;
(6)Expend the income from the use and development of public
lands for the following purposes:
(A)Liquidate obligations incurred in the acquisition,
development and administration of lands, until all obligations have
been fully discharged;
(B)Purchase, develop, restore and preserve for public use,
sites, structures, objects and documents of prehistoric,
historical, archaeological, recreational, architectural and
cultural significance to the State of West Virginia; and
(C)Obtain grants or matching moneys available from the
government of the United States or any of its instrumentalities for
prehistoric, historic, archaeological, recreational, architectural
and cultural purposes.
(7)Designate lands, to which it has title, for development
and administration for the public use including recreation,
wildlife stock grazing, agricultural rehabilitation and
homesteading or other conservation activities;
(8)Enter into leases as a lessor for the development and
extraction of minerals, including coal, oil, gas, sand or gravel,
except as otherwise circumscribed herein: Provided, That leases
for the development and extraction of minerals shall be made in
accordance with the provisions of sections five and six of this
article. The corporation shall reserve title and ownership to the mineral rights in all cases;
(9)Convey, assign or allot lands to the title or custody of
proper departments or other agencies of state government for
administration and control within the functions of departments or
other agencies as provided by law;
(10)Make proper lands available for the purpose of
cooperating with the government of the United States in the relief
of unemployment and hardship or for any other public purpose.
(b)There is hereby continued in the State Treasury a special
public land corporation fund into which shall be paid all proceeds
from public land sales and exchanges and rents, royalties and other
payments from mineral leases: Provided, That all royalties and
payments derived from rivers, streams or public lands acquired or
managed by the Division of Natural Resources pursuant to section
seven, article one, chapter twenty of this code and section two,
article five, chapter twenty of this code shall be retained by the
Division of Natural Resources. The corporation may acquire public
lands from use of the payments made to the fund, along with any
interest accruing to the fund. The corporation shall report
annually, just prior to the beginning of the regular session of the
Legislature, to the finance committees of the Legislature on the
financial condition of the special fund. The corporation shall
report annually to the Legislature on its public land holdings and
all its leases, its financial condition and its operations and
shall make such recommendations to the Legislature concerning the
acquisition, leasing, development, disposition and use of public
lands.
(c)All state agencies, institutions, divisions and departments shall make an inventory of the public lands of the
state as may be by law specifically allocated to and used by each
and provide to the corporation a list of such public lands and
minerals, including their current use, intended use or best use to
which lands and minerals may be put: Provided, That the Division
of Highways need not provide the inventory of public lands
allocated to and used by it, and the Division of Natural Resources
need not provide the inventory of rivers, streams and public lands
acquired or managed by it. The inventory shall identify those
parcels of land which have no present or foreseeable useful purpose
to the State of West Virginia. The inventory shall be submitted
annually to the corporation by the first day of August. The
corporation shall compile the inventory of all public lands and
minerals and report annually to the Legislature by no later than
the first day of January, on its public lands and minerals and the
lands and minerals of the other agencies, institutions, divisions
or departments of this state which are required to report their
holdings to the corporation as set forth in this subsection, and
its financial condition and its operations.
§5A-11-4. Public Land Corporation to conduct sales of public lands
by competitive bidding, modified competitive bidding or direct
sale.
(a) Sales, exchanges or transfers of public lands under this
article shall be conducted under competitive bidding procedures.
However, where the secretary or executive director determines it
necessary and proper in order to assure the following public
policies, including, but not limited to, a preference to users,
lands may be sold by modified competitive bidding or without competitive bidding. In recognizing public policies, the secretary
or director shall give consideration to the following potential
purchasers:
(1) The local government entities which are in the vicinity of
the lands; and
(2) Adjoining landowners.
(b) The policy for selecting the methods of sale is as
follows:
(1) Competitive sale is the general procedure for sales of
public lands and shall be used in the following circumstances:
(A) Wherever in the judgment of the secretary the lands are
accessible and usable regardless of adjoining land ownership; or
(B) Wherever the lands are within a developing or urbanizing
area and land values are increasing due to the location of the land
and interest on the competitive market.
(2) Modified competitive sales may be used to permit the
adjoining landowner or local governmental entity to meet the high
bid at the public sale. Lands otherwise offered under this
procedure would normally be public lands not located near urban
expansion areas, or not located near areas with rapidly increasing
land values, and where existing use of adjacent lands would be
jeopardized by sale under competitive bidding procedures.
(3) Direct sale may be used when the lands offered for sale
are completely surrounded by lands in one ownership with no public
access, or where the lands are needed by local governments.
(4) In no event shall lands be offered for sale by "modified
competitive sales" or "direct sale" unless and until the
corporation makes a written finding of justification for use of an alternative bidding procedure.
(5) Subject to the bidding procedures set forth herein, the
corporation is authorized, at its discretion, to sell public lands
subject to rights-of-way, restrictive covenants or easements
retained by the corporation, limiting the use of such lands to
purposes consistent with the use of adjoining or nearby lands owned
by the corporation.
(c) When lands have been offered for sale by one method of
sale and the lands remain unsold, then the lands may be reoffered
by another method of sale.
(d) Except as provided in this article and section seven-a,
article one, chapter twenty of this code, public lands may not be
sold, exchanged or transferred by the corporation for less than
fair market value. Fair market value shall be determined by an
appraisal made by the Real Estate Division. The appraisal shall be
performed using the principles contained in the current Uniform
Appraisal Standards for Federal Land Acquisitions published under
the auspices of the Interagency Land Acquisition Conference:
Provided, That public lands not acquired or managed by the Division
of Natural Resources pursuant to section seven, article one,
chapter twenty of this code or section two, article five of said
chapter may be sold, exchanged or transferred to any federal agency
or to the state or any of its political subdivisions for less than
fair market value if, upon a specific written finding of fact, the
Executive Director of the Real Estate Division determines that such
a transfer would be in the best interests of the corporation and
state.
(e) The corporation may reject all bids when such bids do not represent the corporation's considered value of the property
exclusive of the fair market value.
(f) The corporation shall propose rules for legislative
approval, in accordance with the provisions of article three,
chapter twenty-nine-a of this code, regarding procedures for
conducting public land sales by competitive bidding, modified
competitive bidding and direct sales.
§5A-11-5. Public Land Corporation to hold public hearing before
sale, lease, exchange or transfer of land or minerals.
(a)Prior to any final decision of any state agency to sell,
lease as a lessor, exchange or transfer land or minerals title to
which is vested in the Public Land Corporation pursuant to this
article, the Public Land Corporation shall:
(1) Prepare and reduce to writing the reasons and supporting
data regarding the sale, lease, exchange or transfer of land or
minerals. The written reasons required under this section shall be
available for public inspection at the office of the county clerk
at the county courthouse of each county in which the affected lands
or minerals are located during the two successive weeks before the
date of the public hearing required by this section;
(2) Provide for a public hearing to be held at a reasonable
time and place within each county in which the affected lands or
minerals are located to allow interested members of the public to
attend the hearing without undue hardship. Members of the public
may be present, submit statements and testimony and question the
corporation's representative appointed pursuant to this section;
(3) Not less than thirty days prior to the public hearing,
provide notice to all members of the Legislature, to the head of the governing body of any political subdivision having zoning or
other land use regulatory responsibility in the geographic area
within which the public lands or minerals are located and to the
head of any political subdivision having administrative or public
services responsibility in the geographic area within which the
lands or minerals are located;
(4) Cause to be published a notice of the required public
hearing. The notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area shall be
each county in which the affected lands or minerals are located.
The public hearing shall be held no earlier than the fourteenth
successive day and no later than the twenty-first successive day
following the first publication of the notice. The notice shall
contain the time and place of the public hearing along with a brief
description of the affected lands or minerals;
(5) Cause a copy of the required notice to be posted in a
conspicuous place at the affected land for members of the public to
observe. The notice shall remain posted for two successive weeks
prior to the date of the public hearing;
(6) Appoint a representative of the corporation who shall
conduct the required public hearing. The corporation's
representative shall have full knowledge of all the facts and
circumstances surrounding the proposed sale, lease, exchange or
transfer. The representative of the corporation conducting the
public hearing shall make the results of the hearing available to
the executive director of the Real Estate Division and the
Secretary of the Department of Administration for consideration prior to making final decisions regarding the affected lands or
minerals. The representative of the corporation shall make a
report of the public hearing available for inspection by the public
or, upon written request of any interested person, provide a
written copy thereof and to all individuals previously receiving
written notice of the hearing within thirty days following the
public hearing; and
(7) If the evidence at the public hearing establishes by a
preponderance that the appraisal provided for in subsection (d),
section four of this article does not reflect the true, fair market
value, the Public Land Corporation shall cause another appraisal to
be made.
(8) If the evidence at the public hearing establishes by a
preponderance that the sale or exchange of land does not meet the
criteria set forth in subdivision three, subsection (a), section
three of this article, the public land corporation may not proceed
with the sale or exchange of said land without judicial approval.
(b) The corporation may not sell, lease as lessor, exchange or
transfer lands or minerals before the thirtieth successive day
following the public hearing required by this section, but in no
event may the sale, lease, exchange or transfer of lands or
minerals be made prior to fifteen days after the report of the
public hearings are made available to the public in general.
(c) If the corporation authorizes the staff to proceed with
consideration of the lease or sale under the terms of this article,
all requirements of this section shall be completed within one year
of date of the authorization by the corporation.
§5A-11-6. Competitive bidding and notice requirements before the development or extraction of minerals on certain lands;
related standards.
(a) The corporation may enter into a lease or contract for the
development of minerals, including, but not limited to, coal, gas,
oil, sand or gravel on or under lands in which the corporation
holds any right, title or interest: Provided, That no lease or
contract may be entered into for the extraction and removal of
minerals by surface mining or auger mining of coal.
(b) With the exception of deep mining operations which are
already in progress and permitted as of the fifth day of July, one
thousand nine hundred eighty-nine, the extraction of coal by deep
mining methods under state forests or wildlife refuges may be
permitted only if the lease or contract provides that no entries,
portals, air shafts or other incursions upon and into the land
incident to the mining operations may be placed or constructed upon
the lands or within three thousand feet of its boundary.
(c) Any lease or contract entered into by the corporation for
the development of minerals shall reserve to the state all rights
to subjacent surface support with which the state is seized or
possessed at the time of such lease or contract.
(d) Notwithstanding any other provisions of the code to the
contrary, nothing herein may be construed to permit extraction of
minerals by any method from, on or under any state park or state
recreation area, nor the extraction of minerals by strip or auger
mining upon any state forest or wildlife refuge.
(e) The corporation may enter into a lease or contract for the
development of minerals where the lease or contract is not
prohibited by any other provisions of this code, only after receiving sealed bids therefor, after notice by publication as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code. The area for
publication shall be each county in which the minerals are located.
(f) The minerals so advertised may be leased or contracted for
development at not less than the fair market value, as determined
by an appraisal made by an independent person or firm chosen by the
corporation, to the highest responsible bidder, who shall give bond
for the proper performance of the contract or lease as the
corporation designates: Provided, That the corporation may reject
any and all bids and to readvertise for bids.
(g) If the provisions of this section have been complied with,
and no bid equal to or in excess of the fair market value is
received, the corporation may, at any time during a period of six
months after the opening of the bids, lease or contract for the
development of the minerals, but the lease or contract price may
not be less than the fair market value.
(h) Any lease or contract for the development of minerals
entered into after the effective date of this section shall be made
in accordance with the provisions of this section and section five
of this article.
(i) The corporation will consult with the office of the
Attorney General to assist the corporation in carrying out the
provisions of this section.
(j) The corporation shall consult with an independent mineral
consultant and any other competent third parties with experience
and expertise in the leasing of minerals, to assist the corporation
in carrying out the provisions of this section, including determining fair market value and negotiating terms and conditions
of mineral leases.
(k) Once the lessee commences the production of minerals and
royalties become due and are paid to the public land corporation,
the public land corporation shall hire an independent auditing firm
to periodically review the lessee's books and accounts for
compliance of payment of appropriate royalties due the public land
corporation for its minerals as produced under the lease agreement.
§5A-11-7. Effectuation of transfer of public land corporation and
transition.
To effectuate the transfer of the public land corporation to
real estate division of the Department of Administration upon the
effective date of this section in the year two thousand seven:
(1) Subject to the provisions of section one-d of this
article, the Secretary of the Department of Administration or a
designee and the Secretary of the Department of Commerce or a
designee shall determine which employees, records,
responsibilities, obligations, assets and property, of whatever
kind and character, of the Public Land Corporation will be
transferred to the Real Estate Division of the Department of
Administration beginning the effective date of this section in the
year two thousand seven: Provided, That any title transferred to
or vested in the Public Land Corporation, formerly existing under
the provisions of article one-a, chapter twenty of this code, as of
the first day of July, two thousand seven, or which may hereafter
become vested in the Public Land Corporation in accordance with the
provisions of this article, shall continue to be vested in the
Public Land Corporation.
(2) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted or allowed to
become effective by the Governor, by any state department or agency
or official thereof, or by a court of competent jurisdiction, in
the performance of functions which have been transferred to the
Real Estate Division of the Department of Administration and were
in effect on the date the transfer occurred continue in effect, for
the benefit of the department, according to their terms until
modified, terminated, superseded, set aside or revoked in
accordance with the law by the Governor, the secretary of the
Department of Administration, or other authorized official, a court
of competent jurisdiction or by operation of law.
(3) Any proceedings, including, but not limited to, notices of
proposed rulemaking, in which the Public Land Corporation was an
initiating or responding party are not affected by the transfer of
the Public Land Corporation to the Real Estate Division of the
Department of Administration. Orders issued in any proceedings
continue in effect until modified, terminated, superseded or
revoked by the Governor, the Secretary of Administration, by a
court of competent jurisdiction or by operation of law. Nothing in
this subdivision prohibits the discontinuance or modification of
any proceeding under the same terms and conditions and to the same
extent that a proceeding could have been discontinued or modified
if the Public Land Corporation had not been transferred to the Real
Estate Division of the Department of Administration. Transfer of
the Public Land Corporation does not affect suits commenced prior
to the effective date of the transfer and all such suits and proceedings shall be had, appeals taken and judgments rendered in
the same manner and with like effect as if the transfer had not
occurred, except that the Secretary of the Department of
Administration or other officer may, in an appropriate case, be
substituted or added as a party.
§5A-11-8. Continuation of the Public Land Corporation.
Pursuant to the provisions of article ten, chapter four of
this code, the Public Land Corporation shall continue to exist
until the first day of July, two thousand nine, unless sooner
terminated, continued or reestablished.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five
of this code;
(2) Public Employees Insurance Agency and Public Employees
Insurance Agency Advisory Board provided in article sixteen,
chapter five of this code;
(3) Governor's Mansion Advisory Committee provided for in
article five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article
one-a, chapter twenty-nine of this code;
(5)
Education and State West Virginia Public Employees Grievance Board provided for in article
twenty-nine, chapter
eighteen of this code and article six-a, chapter twenty-nine three,
chapter six-c of this code;
(6) Board of Risk and Insurance Management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary Commission provided in article twenty-three,
chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one,
chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter
twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article
two, chapter six-b of this code;
and
(11) Consolidated Public Retirement Board provided in article
ten-d, chapter five of this code;
and
(12) Real Estate Division provided in article ten, chapter
five-a of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety
provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two-a of this code. The following
boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with
the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety
and Technical Review Committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the
Division of Tourism and the Tourism Commission provided in article
two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources
Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter
nineteen of this code;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) The Bureau of Employment Programs provided in chapter
twenty-one-a of this code.
(c) The Economic Development Authority provided in article
fifteen, chapter thirty-one of this code is continued as an
independent agency within the executive branch.
(d) The Water Development Authority and Board provided in
article one, chapter twenty-two-c of this code is continued as an
independent agency within the executive branch.
(e) Workers' Compensation Commission provided in article one,
chapter twenty-three of this code is continued as an independent
agency within the executive branch.
(f) The following agencies and boards, including all of the
allied, advisory and affiliated entities, are transferred to the
Department of Environmental Protection for purposes of
administrative support and liaison with the Office of the Governor:
(1) Air Quality Board provided in article two, chapter
twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three,
chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board,
provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter
twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in
article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight,
chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article
nine, chapter twenty-two-c of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of
this code;
(2) Educational Broadcasting Authority provided in article five, chapter ten of this code;
(3) Division of Culture and History provided in article one,
chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section
two, article ten-a, chapter eighteen of this code.
(h) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Health and Human
Resources:
(1) Human Rights Commission provided in article eleven,
chapter five of this code;
(2) Division of Human Services provided in article two,
chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter
sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council
provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b,
chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article
fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter
twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter
forty-eight of this code.
(i) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and
administered as a part of the Department of Military Affairs and
Public Safety:
(1) Adjutant General's Department provided in article one-a,
chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of
this code;
(3) Military Awards Board provided in article one-g, chapter
fifteen of this code;
(4) West Virginia State Police provided in article two,
chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and
Disaster Recovery Board provided in article five, chapter fifteen
of this code and Emergency Response Commission provided in article
five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter
fifteen of this code;
(7) Division of Corrections provided in chapter twenty-five of
this code;
(8) Fire Commission provided in article three, chapter
twenty-nine of this code;
(9) Regional Jail and Correctional Facility Authority provided
in article twenty, chapter thirty-one of this code;
(10) Board of Probation and Parole provided in article twelve,
chapter sixty-two of this code; and
(11) Division of Veterans' Affairs and Veterans' Council
provided in article one, chapter nine-a of this code.
(j) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of
this code;
(2) Racing Commission provided in article twenty-three,
chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director
provided in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two,
chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided
in article sixteen, chapter eleven of this code and article two,
chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in
article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter
forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter
thirty-one-a of this code;
(9) The State Budget Office provided in article two of this
chapter;
(10) The Municipal Bond Commission provided in article three,
chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a,
chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a,
chapter twenty-nine of this code.
(k) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter
seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority
provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two,
chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two,
chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter
twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter
twenty-nine of this code; and
(7) Port Authority provided in article sixteen-b, chapter
seventeen of this code.
(l) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the position of administrator and
the powers, authority and duties of each administrator and agency
are not affected by the enactment of this chapter.
(m) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence, powers, authority
and duties of boards and the membership, terms and qualifications
of members of the boards are not affected by the enactment of this chapter. All boards that are appellate bodies or are independent
decisionmakers shall not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(n) Any department previously transferred to and incorporated
in a department by prior enactment of this section means a division
of the appropriate department. Wherever reference is made to any
department transferred to and incorporated in a department created
in section two, article one of this chapter, the reference means a
division of the appropriate department and any reference to a
division of a department so transferred and incorporated means a
section of the appropriate division of the department.
(o) When an agency, board or commission is transferred under
a bureau or agency other than a department headed by a secretary
pursuant to this section, that transfer is solely for purposes of
administrative support and liaison with the Office of the Governor,
a department secretary or a bureau. Nothing in this section
extends the powers of department secretaries under section two of
this article to any person other than a department secretary and
nothing limits or abridges the statutory powers and duties of
statutory commissioners or officers pursuant to this code.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the
contrary, the secretary of each department shall have plenary power
and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
employees as may be necessary to carry out the functions of the
secretary, which employees shall serve at the will and pleasure of
the secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically, and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the
department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members and name a person
to fill more than one position;
(4) Transfer permanent state employees between departments in
accordance with the provisions of section seven of this article;
(5) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board
members;
(6) Reorganize internal functions or operations;
(7) Formulate comprehensive budgets for consideration by the
Governor, and transfer within the department funds appropriated to
the various agencies of the department which are not expended due
to cost savings resulting from the implementation of the provisions
of this chapter:
Provided, That no more than twenty-five percent
of the funds appropriated to any one agency or board may be
transferred to other agencies or boards within the department:
Provided, however, That no funds may be transferred from a special
revenue account, dedicated account, capital expenditure account or
any other account or funds specifically exempted by the Legislature
from transfer, except that the use of appropriations from the State
Road Fund transferred to the Office of the Secretary of the
Department of Transportation is not a use other than the purpose
for which the funds were dedicated and is permitted:
Provided further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the appropriate
secretary may transfer the funds formerly appropriated to the
agency, board or function in order to implement consolidation. The
authority to transfer funds under this section shall expire on the
thirtieth day of June, two thousand five;
(8) Enter into contracts or agreements requiring the
expenditure of public funds, and authorize the expenditure or
obligation of public funds as authorized by law:
Provided, That
the powers granted to the secretary to enter into contracts or
agreements and to make expenditures or obligations of public funds
under this provision shall not exceed or be interpreted as
authority to exceed the powers granted by the Legislature to the
various commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(9) Acquire by lease or purchase property of whatever kind or
character and convey or dispose of any property of whatever kind or
character as authorized by law:
Provided, That the powers granted
to the secretary to lease, purchase, convey or dispose of such
property shall be exercised in accordance with the provisions of
articles three, ten and eleven, chapter five-a of this code:
Provided however, That the powers granted to the secretary to
lease, purchase, convey or dispose of such property shall not
exceed or be interpreted as authority to exceed the powers granted
by the Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department under this chapter;
(10) Conduct internal audits;
(11) Supervise internal management;
(12) Promulgate rules, as defined in section two, article one,
chapter twenty-nine-a of this code, to implement and make effective
the powers, authority and duties granted and imposed by the
provisions of this chapter in accordance with the provisions of
chapter twenty-nine-a of this code;
(13) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter twenty-nine-a
of this code, by any administrator, agency or board within the
department. Without written consent, no proposal for a rule shall
have any force or effect;
(14) Delegate to administrators the duties of the secretary as
the secretary may deem appropriate from time to time to facilitate
execution of the powers, authority and duties delegated to the
secretary; and
(15) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall
engage in a comprehensive review of the practices, policies and
operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restriction of the state's
vehicle or other transportation fleet;
(2) The elimination, reduction and restriction of state government publications, including annual reports, informational
materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to
facilitate cost-effective purchasing procedures, including
consideration of means by which domestic businesses may be assisted
to compete for state government purchases; and
(6) The computerization of the functions of the state agencies
and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries
herein shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any
program.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections five and
six, section ten, article six, chapter twenty-nine of this code
shall be limited to the organizational unit within the agency or
board and within the occupational group established by the
classification and compensation plan for the classified service of
the agency or board in which the employee was employed prior to the agency or board's transfer or incorporation into the department:
Provided, That the employee shall possess the qualifications
established for the job class. The duration of recall rights
provided in this subsection shall be limited to two years or the
length of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed to
abridge the rights of employees within the classified service of
the state as provided in sections ten and ten-a, article six,
chapter twenty-nine of this code.
(e) Notwithstanding any other provision of this code to the
contrary, the secretary of each department with authority over
programs which are payors for prescription drugs, including but not
limited to, the Public Employees Insurance Agency, the Children's
Health Insurance Program, the Division of Corrections, the Division
of Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions
including nursing homes and veteran's homes, the Division of
Rehabilitation, public health departments, the Bureau for Medical
Services and other programs that are payors for prescription drugs,
shall cooperate with the Office of the Pharmaceutical Advocate
established pursuant to section four, article sixteen-d, chapter
five of this code for the purpose of purchasing prescription drugs
for any program over which they have authority.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-7. Additional powers, duties and services of director.
In addition to all other powers, duties and responsibilities granted and assigned to the director in this chapter and elsewhere
by law, the director is hereby authorized and empowered to:
(1) With the advice of the commission, prepare and administer,
through the various divisions created by this chapter, a long-range
comprehensive program for the conservation of the natural resources
of the state which best effectuates the purpose of this chapter and
which makes adequate provisions for the natural resources laws of
the state;
(2) Sign and execute in the name of the state by the Division
of Natural Resources any contract or agreement with the federal
government or its departments or agencies, subdivisions of the
state, corporations, associations, partnerships or individuals;
(3) Conduct research in improved conservation methods and
disseminate information matters to the residents of the state;
(4) Conduct a continuous study and investigation of the habits
of wildlife and, for purposes of control and protection, to
classify by regulation the various species into such categories as
may be established as necessary;
(5) Prescribe the locality in which the manner and method by
which the various species of wildlife may be taken, or chased,
unless otherwise specified by this chapter;
(6) Hold at least six meetings each year at such time and at
such points within the state, as in the discretion of the Natural
Resources Commission may appear to be necessary and proper for the
purpose of giving interested persons in the various sections of the
state an opportunity to be heard concerning open season for their
respective areas, and report the results of the meetings to the
Natural Resources Commission before such season and bag limits are fixed by it;
(7) Suspend open hunting season upon any or all wildlife in
any or all counties of the state with the prior approval of the
Governor in case of an emergency such as a drought, forest fire
hazard or epizootic disease among wildlife. The suspension shall
continue during the existence of the emergency and until rescinded
by the director. Suspension, or reopening after such suspension,
of open seasons may be made upon twenty-four hours' notice by
delivery of a copy of the order of suspension or reopening to the
wire press agencies at the state capitol;
(8) Supervise the fiscal affairs and responsibilities of the
division;
(9) Designate such localities as he or she shall determine to
be necessary and desirable for the perpetuation of any species of
wildlife;
(10) Enter private lands to make surveys or inspections for
conservation purposes, to investigate for violations of provisions
of this chapter, to serve and execute warrants and processes, to
make arrests and to otherwise effectively enforce the provisions of
this chapter;
(11) Acquire for the state in the name of the Division of
Natural Resources by purchase, condemnation, lease or agreement, or
accept or reject for the state, in the name of the Division of
Natural Resources, gifts, donations, contributions, bequests or
devises of money, security or property, both real and personal, and
any interest in such property, including lands and waters, which he
or she deems suitable for the following purposes:
(a) For state forests for the purpose of growing timber, demonstrating forestry, furnishing or protecting watersheds or
providing public recreation;
(b) For state parks or recreation areas for the purpose of
preserving scenic, aesthetic, scientific, cultural, archaeological
or historical values or natural wonders, or providing public
recreation;
(c) For public hunting, trapping or fishing grounds or waters
for the purpose of providing areas in which the public may hunt,
trap or fish, as permitted by the provisions of this chapter and
the rules issued hereunder;
(d) For fish hatcheries, game farms, wildlife research areas
and feeding stations;
(e) For the extension and consolidation of lands or waters
suitable for the above purposes by exchange of other lands or
waters under his or her supervision;
(f) For such other purposes as may be necessary to carry out
the provisions of this chapter;
(12) Capture, propagate, transport, sell or exchange any
species of wildlife as may be necessary to carry out the provisions
of this chapter;
(13) Sell timber for not less than the value thereof, as
appraised by a qualified appraiser appointed by the director, from
all lands under the jurisdiction and control of the director,
except those lands that are designated as state parks and those in
the Kanawha State Forest. The appraisal shall be made within a
reasonable time prior to any sale, reduced to writing, filed in the
office of the director and shall be available for public
inspection. The director must obtain the written permission of the Governor to sell timber when the appraised value is more than five
thousand dollars. The director shall receive sealed bids therefor,
after notice by publication as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code and the publication area for such publication shall be
each county in which the timber is located. The timber so
advertised shall be sold at not less than the appraised value to
the highest responsible bidder, who shall give bond for the proper
performance of the sales contract as the director shall designate;
but the director shall have the right to reject any and all bids
and to readvertise for bids. If the foregoing provisions of this
section have been complied with and no bid equal to or in excess of
the appraised value of the timber is received, the director may, at
any time, during a period of six months after the opening of the
bids, sell the timber in such manner as he or she deems
appropriate, but the sale price shall not be less than the
appraised value of the timber advertised. No contract for sale of
timber made pursuant to this section shall extend for a period of
more than ten years. And all contracts heretofore entered into by
the state for the sale of timber shall not be validated by this
section if the same be otherwise invalid. The proceeds arising
from the sale of the timber so sold shall be paid to the Treasurer
of the State of West Virginia and shall be credited to the division
and used exclusively for the purposes of this chapter:
Provided,
That nothing contained herein shall prohibit the sale of timber
which otherwise would be removed from rights-of-way necessary for
and strictly incidental to the extraction of minerals;
(14) Sell or lease, with the approval in writing of the Governor, coal, oil, gas, sand, gravel and any other minerals that
may be found in the lands under the jurisdiction and control of the
director, except those lands that are designated as state parks.
The director, before making sale or lease thereof, shall receive
sealed bids therefor, after notice by publication as a Class II
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for such publication shall be each county in which such lands are
located. The minerals so advertised shall be sold or leased to the
highest responsible bidder, who shall give bond for the proper
performance of the sales contract or lease as the director shall
designate; but the director shall have the right to reject any and
all bids and to readvertise for bids. The proceeds arising from
any such sale or lease shall be paid to the Treasurer of the State
of West Virginia and shall be credited to the division and used
exclusively for the purposes of this chapter;
(15) Exercise the powers granted by this chapter for the
protection of forests and regulate fires and smoking in the woods
or in their proximity at such times and in such localities as may
be necessary to reduce the danger of forest fires;
(16) Cooperate with departments and agencies of state, local
and federal governments in the conservation of natural resources
and the beautification of the state;
(17) Report to the Governor each year all information relative
to the operation and functions of the division and the director
shall make such other reports and recommendations as may be
required by the Governor, including an annual financial report
covering all receipts and disbursements of the division for each fiscal year, and he or she shall deliver such report to the
Governor on or before the first day of December next after the end
of the fiscal year so covered. A copy of such report shall be
delivered to each house of the Legislature when convened in January
next following;
(18) Keep a complete and accurate record of all proceedings,
record and file all bonds and contracts taken or entered into and
assume responsibility for the custody and preservation of all
papers and documents pertaining to his or her office, except as
otherwise provided by law;
(19) Offer and pay, in his or her discretion, rewards for
information respecting the violation, or for the apprehension and
conviction of any violators, of any of the provisions of this
chapter;
(20) Require such reports as he or she may deem to be
necessary from any person issued a license or permit under the
provisions of this chapter, but no person shall be required to
disclose secret processes or confidential data of competitive
significance;
(21) Purchase as provided by law all equipment necessary for
the conduct of the division;
(22) Conduct and encourage research designed to further new
and more extensive uses of the natural resources of this state and
to publicize the findings of such research;
(23) Encourage and cooperate with other public and private
organizations or groups in their efforts to publicize the
attractions of the state;
(24) Accept and expend, without the necessity of appropriation by the Legislature, any gift or grant of money made to the division
for any and all purposes specified in this chapter and he or she
shall account for and report on all such receipts and expenditures
to the Governor;
(25) Cooperate with the state historian and other appropriate
state agencies in conducting research with reference to the
establishment of state parks and monuments of historic, scenic and
recreational value and to take such steps as may be necessary in
establishing such monuments or parks as he or she deems advisable;
(26) Maintain in his or her office at all times, properly
indexed by subject matter and also in chronological sequence, all
rules made or issued under the authority of this chapter. Such
records shall be available for public inspection on all business
days during the business hours of working days;
(27) Delegate the powers and duties of his or her office,
except the power to execute contracts
not related to land and
stream management, to appointees and employees of the division, who
shall act under the direction and supervision of the director and
for whose acts he or she shall be responsible;
(28) Conduct schools, institutions and other educational
programs, apart from or in cooperation with other governmental
agencies, for instruction and training in all phases of the natural
resources programs of the state;
(29) Authorize the payment of all or any part of the
reasonable expenses incurred by an employee of the division in
moving his or her household furniture and effects as a result of a
reassignment of the employee:
Provided, That no part of the moving
expenses of any one such employee shall be paid more frequently than once in twelve months; and
(30) Promulgate rules, in accordance with the provisions of
chapter twenty-nine-a of this code, to implement and make effective
the powers and duties vested in him or her by the provisions of
this chapter and take such other steps as may be necessary in his
or her discretion for the proper and effective enforcement of the
provisions of this chapter.