sdj-59th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2009
FIFTY-NINTH DAY
____________
Charleston, W. Va., Friday, April 10, 2009
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Don Gatewood, Associate
Pastor, Forrest Burdette Memorial United Methodist Church,
Hurricane, West Virginia.
Pending the reading of the Journal of Thursday, April 9, 2009,
On motion of Senator Yost, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 172, Authorizing Department
of Administration promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page eight, section three, line twenty-one, after the word
"authorized" by changing the period to a comma and inserting the
following: with the following amendment:
On page three, subsection 3.3.1, line twenty-one, following
the period after the words "receipt of request", by inserting the
words "If the spending unit does not have copies of the most recent
solicitation and contract for the service or commodity, the
spending unit shall authorize the Purchasing Division to release to
the CNA that information, if available, within ten (10) working
days of receipt of request by the CNA.";
And,
On page seven, subsection 5.1.5, line twenty-two, following
the period after the words "receipt of the proposed price", by
striking out the remainder of the sentence.;
On page ten, section four, line twenty, by striking out the
word "repealed" and inserting in lieu thereof the word
"authorized";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 172--A Bill to reenact §64-
1-1 of the Code of West Virginia, 1931, as amended; and to amend
and reenact article 2, chapter 64 of said code, all relating generally to the promulgation of administrative rules by the
various executive or administrative agencies and the procedures
relating thereto; continuing rules previously promulgated by state
agencies and boards; legislative mandate or authorization for the
promulgation of certain legislative rules; authorizing certain of
the agencies to promulgate certain legislative rules in the form
that the rules were filed in the State Register; authorizing
certain of the agencies to promulgate certain legislative rule with
various modifications presented to and recommended by the
Legislative Rule-Making Review Committee; repealing certain
legislative rule; authorizing the Consolidated Public Retirement
Board to promulgate a legislative rule relating to general
provisions; authorizing the Consolidated Public Retirement Board to
promulgate a legislative rule relating to benefit determination and
appeal; authorizing the Consolidated Public Retirement Board to
promulgate a legislative rule relating to the Teachers Retirement
System; authorizing the Consolidated Public Retirement Board to
promulgate a legislative rule relating to the Public Employees
Retirement System; authorizing the Consolidated Public Retirement
Board to promulgate a legislative rule relating to refund,
reinstatement, retroactive service and loan interest factors;
authorizing the Consolidated Public Retirement Board to promulgate
a legislative rule relating to service credit for accrued and
unused sick and annual leave; authorizing the Consolidated Public
Retirement Board to promulgate a legislative rule relating to the
West Virginia State Police; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the
Deputy Sheriff Retirement System; authorizing the Division of
Personnel to promulgate a legislative rule relating to
reimbursement of compensation paid to state employees for training,
education and professional development; authorizing the Department
of Administration to promulgate a legislative rule relating to the
Purchasing Division; authorizing the Department of Administration
to promulgate a legislative rule relating to fair market price
determination; authorizing the Department of Administration to
promulgate a legislative rule relating to statewide contracts;
authorizing the Department of Administration to promulgate a
legislative rule relating to qualifications for participation;
authorizing the Department of Administration to promulgate a
legislative rule relating to parking; authorizing the Ethics
Commission to promulgate a legislative rule relating to the
purchase, sale or lease of personal property; authorizing the
Ethics Commission to promulgate a legislative rule relating to
interest in public contracts; authorizing the Ethics Commission to
repeal a legislative rule relating to voting; authorizing the
Ethics Commission to promulgate a legislative rule relating to
employment exemptions; authorizing the Ethics Commission to
promulgate a legislative rule relating to lobbying; and authorizing
the Ethics Commission to promulgate a legislative rule relating to
the filing of verified time records.
On motion of Senator Kessler, the following amendment to the
House of Delegates amendments to the bill was reported by the Clerk and adopted:
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 172--A Bill to reenact §64-
1-1 of the Code of West Virginia, 1931, as amended; and to amend
and reenact article 2, chapter 64 of said code, all relating
generally to the promulgation of administrative rules by the
various executive or administrative agencies and the procedures
relating thereto; continuing rules previously promulgated by state
agencies and boards; legislative mandate or authorization for the
promulgation of certain legislative rules; authorizing certain of
the agencies to promulgate certain legislative rules in the form
that the rules were filed in the State Register; authorizing
certain of the agencies to promulgate certain legislative rule with
various modifications presented to and recommended by the
Legislative Rule-Making Review Committee; authorizing certain of
the agencies to promulgate certain legislative rule with various
modifications presented to and recommended by the Legislative Rule-
Making Review Committee and as amended by the Legislature;
repealing certain legislative rule; authorizing the Consolidated
Public Retirement Board to promulgate a legislative rule relating
to general provisions; authorizing the Consolidated Public
Retirement Board to promulgate a legislative rule relating to
benefit determination and appeal; authorizing the Consolidated
Public Retirement Board to promulgate a legislative rule relating
to the Teachers Retirement System; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating
to the Public Employees Retirement System; authorizing the
Consolidated Public Retirement Board to promulgate a legislative
rule relating to refund, reinstatement, retroactive service and
loan interest factors; authorizing the Consolidated Public
Retirement Board to promulgate a legislative rule relating to
service credit for accrued and unused sick and annual leave;
authorizing the Consolidated Public Retirement Board to promulgate
a legislative rule relating to the West Virginia State Police;
authorizing the Consolidated Public Retirement Board to promulgate
a legislative rule relating to the Deputy Sheriff Retirement
System; authorizing the Division of Personnel to promulgate a
legislative rule relating to reimbursement of compensation paid to
state employees for training, education and professional
development; authorizing the Department of Administration to
promulgate a legislative rule relating to the Purchasing Division;
authorizing the Department of Administration to promulgate a
legislative rule relating to fair market price determination;
authorizing the Department of Administration to promulgate a
legislative rule relating to statewide contracts; authorizing the
Department of Administration to promulgate a legislative rule
relating to qualifications for participation; authorizing the
Department of Administration to promulgate a legislative rule
relating to parking; authorizing the Ethics Commission to
promulgate a legislative rule relating to the purchase, sale or
lease of personal property; authorizing the Ethics Commission to promulgate a legislative rule relating to interest in public
contracts; authorizing the Ethics Commission to repeal a
legislative rule relating to voting; authorizing the Ethics
Commission to promulgate a legislative rule relating to employment
exemptions; authorizing the Ethics Commission to promulgate a
legislative rule relating to lobbying; and authorizing the Ethics
Commission to promulgate a legislative rule relating to the filing
of verified time records.
On motion of Senator Kessler, the Senate concurred in the
House of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 172, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 172) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 172) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Plymale, unanimous consent being
granted, the Senate returned to the second order of business and
the introduction of guests.
The Senate again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 195, Authorizing Department
of Health and Human Resources promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 244, Relating to public
employees' reemployment after retirement.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 262, Removing prohibition against using
county's General Revenue Fund for historic preservation.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2009, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 335, Authorizing Division of Culture and
History distribute fairs and festivals' funding.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1. DIVISION OF CULTURE AND HISTORY.
§29-1-11. Power to accept and receive funds; power to apply for
grants; disbursal of funds; restrictions on expenditure;
disposition of funds heretofore received or appropriated.
(a) The division may, in the name of the State of West
Virginia, through the commissioner or its commissions, accept and
receive grants, appropriations, gifts, bequests and funds from any
public or private source for the purpose of carrying out the duties
and purposes of this article.
(b) The division may, through the commissioner or its
commissions, apply for grants from the federal government, private
foundations and any other source for the purposes of this article.
(c) All funds received from any source shall be paid into the
Treasury of the state and disbursed upon warrant by the State
Auditor following requisition by the division.
Such The
requisitions shall be signed by the commissioner or by
such other
another person as the commissioner may authorize by written
document deposited with the auditor or, in the event of emergency,
by the Governor or the Governor's designee.
(d) No funds or gifts received from any source shall be
expended or used for any purpose other than that intended as
evidenced by a positive and affirmative declaration or by a
negative restriction or limitation.
(e) The division may assist in the promotion and operation of
an annual state fair and other regional or local fairs and
festivals entitled to aid when funds are available and to expend
those funds for the support and development of fairs and festivals.
(f) All federal or state funds received to provide
grants-in-aid or awards to further the purposes of this article
shall be approved and distributed by the appropriate commission
established by this article.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 335, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 335) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 335) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2009, of
Eng. Senate Bill No. 338, Creating additional seventeenth judicial circuit court judge.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 382, Adjusting State Rail
Authority's contract authority.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 382--A Bill to amend and
reenact §29-18-6 of the Code of West Virginia, 1931, as amended,
relating to the amount of expenditure for rolling stock; and
granting additional authority regarding the Maryland Area Regional
Commuter.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 382, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 382) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 408, Relating to model
health plan for uninsurable individuals.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2009, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 434, Relating to long-term care policy
insurance agents.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page five, section eight-a, line seventy, by striking out
the words "if the commissioner determines that the other states'
requirements are substantially equivalent to those contained in
this section".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 434, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 434) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 434) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 464, Authorizing Public Employees
Insurance Agency charge fee for paper transactions.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, section twenty-four-a, line one, by striking out
the word "nine" and inserting in lieu thereof the word "twenty-
four";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 464--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §5-16-24a, relating to authorizing the Public Employees
Insurance Agency to establish a fee for paper transactions that
could be performed electronically.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 464, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 464) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 501, Prohibiting animal gas
chamber euthanasia.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §7-10-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §19-20-8 of said code be amended and
reenacted; and that §30-10A-4, §30-10A-6 and §30-10A-8 of said code
be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 10. HUMANE OFFICERS.
§7-10-4. Custody and care of animals abandoned, neglected or
cruelly treated; hearing; bonds; liability for costs; liens;
exclusions.
(a) Subject to the provisions of subsection (h) of this
section, a humane officer shall take possession of any animal,
including birds or wildlife in captivity, known or believed to be
abandoned, neglected, deprived of necessary sustenance, shelter,
medical care or reasonable protection from fatal freezing or heat
exhaustion or cruelly treated or used as defined in sections
nineteen and nineteen-a, article eight, chapter sixty-one of this
code.
(b) The owner or persons in possession, if his or her identity
and residence are known, of any animal seized pursuant to
subsection (a) of this section shall be provided written notice of
the seizure, his or her liability for the cost and care of the
animal seized as provided in this section and the right to request
a hearing in writing before a magistrate in the county where the
animal was seized. The magistrate court shall schedule any hearing
requested within ten working days of the receipt of the request. The failure of an owner or person in possession to request a
hearing within five working days of the seizure is prima facie
evidence of the abandonment of the animal. At the hearing, if
requested, the magistrate shall determine by a preponderance of the
evidence if the animal was abandoned, neglected or deprived of
necessary sustenance, shelter, medical care or reasonable
protection from fatal freezing or heat exhaustion or otherwise
treated or used cruelly as set forth in this section.
(c) (1) If a hearing is requested and the magistrate finds by
a preponderance of the evidence that the owner did abandon, neglect
or cruelly treat the animal, or if no hearing is requested and the
magistrate finds by a preponderance of the evidence, based upon the
affidavit of the humane officer, that the owner did abandon,
neglect or cruelly treat the animal, the magistrate shall enter an
order awarding custody of the animal to any humane officer for
further disposition in accordance with reasonable practices for the
humane treatment of animals. After hearing the evidence, if the
magistrate is not convinced the animal was neglected or cruelly
treated, he or she may dismiss the action and order the animal be
returned to the owner. If the magistrate finds in favor of the
humane officer, the owner of the animal shall post a bond with the
court in an amount sufficient to provide for the reasonable costs
of care, medical treatment and provisions for the animal for at
least thirty days. The bond shall be filed with the court within
five days following the court's finding against the owner. At the
end of the time for which expenses are covered by the original bond if the animal remains in the care of the humane officer and the
owner desires to prevent disposition of the animal by the humane
officer, the owner shall post an additional bond with the court
within five days of the expiration of the original bond. During
this period, the humane officer is authorized to place the animal
in a safe private home or other safe private setting in lieu of
retaining the animal in an animal shelter. The person whose animal
is seized is liable for all costs of the care of the seized animal.
(2) If a bond has been posted in accordance with subdivision
(1) of this subsection, the custodial animal care agency may draw
from the bond the actual reasonable costs incurred by the agency in
providing care, medical treatment and provisions to the impounded
animal from the date of the initial impoundment to the date of the
final disposition of the animal.
(d) Any person whose animal is seized and against whom the
magistrate enters a finding pursuant to this section is liable
during any period it remains in the possession of the humane
officer for the reasonable costs of care, medical treatment and
provisions for the animal not covered by the posting of the bond as
provided in subdivision (1), subsection (c) of this section. The
magistrate shall require the person liable for these costs to post
bond to provide for the maintenance of the seized animal. This
expense, if any, becomes a lien on the animal and must be
discharged before the animal is released to the owner. Upon
dismissal or withdrawal of the complaint, any unused portion of
posted bonds shall be returned to the owner. Upon a finding in favor of the humane officer, all interest in the impounded animal
shall transfer to the humane officer for disposition in accordance
with reasonable practices for the humane treatment of animals. Any
additional expense above the value of the animal may be recovered
by the humane officer or custodial agency.
(e) After the humane officer takes possession of the animal
pursuant to a finding by a magistrate that the animal has been
abandoned, neglected or cruelly treated and a licensed veterinarian
determines that the animal should be humanely destroyed to end its
suffering, the veterinarian may order the animal to be humanely
destroyed and neither the humane officer, animal euthanasia
technician nor the veterinarian is subject to any civil or criminal
liability as a result of
such the action.
(f)
(1) The term "humanely destroyed" as used in this section
means:
(1) (A) Humane euthanasia of an animal by hypodermic injection
by a licensed veterinarian or by an animal euthanasia technician
certified in accordance with the provisions of article ten-a,
chapter thirty of this code; or
(2) (B) Any other humane euthanasia procedure approved by the
American Veterinary Medical Association, the Humane Society of the
United States or the American Humane Association.
(2) The term "humanely destroyed" does not include euthanizing
an animal by means of a gas chamber: Provided, That any county
which has a gas chamber in operation as of the effective date of
this section may continue to operate the gas chamber subject to the following: (1) The gas chamber shall be operated by an animal
euthanasia technician certified pursuant to article ten-a, chapter
thirty of this code; and (2) the gas chamber shall have been
manufactured and installed by a person who regularly manufactures
and installs gas chambers. The Board of Veterinary Medicine shall
promulgate emergency rules regarding the inspection of gas
chambers, pursuant to section fifteen, article three, chapter
twenty-nine-a of this code.
(g) In case of an emergency in which an animal cannot be
humanely destroyed in an expeditious manner, an animal may be
destroyed by shooting if:
(1) The shooting is performed by someone trained in the use of
firearms with a weapon and ammunition of suitable caliber and other
characteristics designed to produce instantaneous death by a single
shot; and
(2) Maximum precaution is taken to minimize the animal's
suffering and to protect other persons and animals.
(h) The provisions of this section do not apply to farm
livestock, as defined in subsection (d), section two, article
ten-b, chapter nineteen of this code; poultry, gaming fowl or
wildlife kept in private or licensed game farms if kept and
maintained according to usual and accepted standards of livestock;
poultry, gaming fowl, wildlife or game farm production and
management; nor to the humane use of animals or activities
regulated under and in conformity with the provisions of 7 U. S. C.
§2131,
et seq., and the regulations promulgated thereunder.
(i) All persons or entities in the State performing euthanasia
under this article of the code shall register with the Board of
Veterinary Medicine by December 31, 2009 in a manner to be
perscribed by the board. The Board of Veterinary Medicine shall
promulgate emergency rules relating to the registration of those
performing animal euthanasia, pursuant to section fifteen, article
three, chapter twenty-nine-a of this code.
CHAPTER 19. AGRICULTURE.
ARTICLE 20. DOGS AND CATS.
§19-20-8. Impounding and disposition of dogs; costs and fees.
(a) All dogs seized and impounded as provided in this article,
except dogs taken into custody under section two of this article,
shall be kept housed and fed in the county
dog pound or municipal
shelter for five days after notice of seizure and impounding has
been given or posted as required by this article, at the expiration
of which time all dogs which have not previously been redeemed by
their owners as provided in this article, shall be sold or humanely
destroyed. No dog sold as provided in this section may be
discharged from the pound until the dog has been registered and
provided with a valid registration tag.
(b)
(1) The term "humanely destroyed" as used in this section
means:
(1) (A) Humane euthanasia of an animal by hypodermic injection
by a licensed veterinarian or by an animal euthanasia technician
certified in accordance with the provisions of article ten-a,
chapter thirty of this code; or
(2) (B) Any other humane euthanasia procedure approved by the
American Veterinary Medical Association, the Humane Society of the
United States or the American Humane Association.
(2) The term "humanely destroyed" does not include euthanizing
a dog or cat by means of a gas chamber: Provided, That any county
which has a gas chamber in operation as of the effective date of
this section may continue to operate the gas chamber subject to the
following: (1) The gas chamber shall be operated by an animal
euthanasia technician certified pursuant to article ten-a, chapter
thirty of this code; and (2) the gas chamber shall have been
manufactured and installed by a person who regularly manufactures
and installs gas chambers. The Board of Veterinary Medicine shall
promulgate emergency rules regarding the inspection of gas
chambers, pursuant to section fifteen, article three, chapter
twenty-nine-a of this code.
(c) In an emergency or in a situation in which a dog cannot be
humanely destroyed in an expeditious manner, a dog may be destroyed
by shooting if:
(1) The shooting is performed by someone trained in the use of
firearms with a weapon and ammunition of suitable caliber and other
characteristics designed to produce instantaneous death by a single
shot; and
(2) Maximum precaution is taken to minimize the dog's
suffering and to protect other persons and animals.
(d) The owner, keeper or harborer of any dog seized and
impounded under the provisions of this article may, at any time prior to the expiration of five days from the time that notice of
the seizure and impounding of the dog has been given or posted as
required by this article, redeem the dog by paying to the dog
warden or his or her authorized agent or deputy all of the costs
assessed against the dog and by providing a valid certificate of
registration and registration tag for the dog.
(e) Reasonable costs and fees, in an amount to be determined,
from time to time, by the county commission, shall be assessed
against every dog seized and impounded under the provisions of this
article, except dogs taken into custody under section two of this
article. The cost shall be a valid claim in favor of the county
against the owner, keeper or harborer of any dog seized and
impounded under the provisions of this article and not redeemed or
sold as provided in this section and the costs shall be recovered
by the sheriff in a civil action against the owner, keeper or
harborer.
(f) A record of all dogs impounded, the disposition of the
dogs and a statement of costs assessed against each dog shall be
kept by the dog warden and a transcript thereof shall be furnished
to the sheriff quarterly.
(g) All persons or entities in the state performing euthanasia
under this article of the code shall register with the Board of
Veterinary Medicine by December 31, 2009, in a manner to be
perscribed by the board. The Board of Veterinary Medicine shall
promulgate emergency rules relating to the registration of those
performing animal euthanasia, pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 10A. ANIMAL EUTHANASIA TECHNICIANS.
§30-10A-4. Scope of practice.
(a) A certified animal euthanasia technician may
sedate,
tranquilize and euthanize animals assigned to the care of a legally
operated humane society, animal shelter or animal control facility
within this state. A certified animal euthanasia technician shall
practice
sedation, tranquilization and euthanasia under the
authority of a licensed veterinarian as defined in article ten of
this chapter or a county humane officer as defined in article ten,
chapter seven of this code within the limitations imposed by this
article and rules promulgated by the board under this article.
(b) For the purposes of this article, controlled substance
permits issued by the state board of pharmacy and the federal drug
enforcement administration shall be issued to a municipal or county
run animal control facility, or a humane society or animal shelter
incorporated and organized under the laws of the state, with one or
more duly appointed agents. The humane society or animal shelter
shall possess a tax exempt charitable or tax exempt governmental
determination under the Internal Revenue Code of 1986, as amended.
(c) A certified animal euthanasia technician may not practice
or offer to practice his or her profession outside the direct
authority of the humane society, animal shelter or animal control
facility which employs him or her or otherwise contracts for his or
her services. A certified animal euthanasia technician is not qualified and may not indicate that he or she is qualified to act
in any capacity relative to animals beyond his or her specified and
regulated authority to
sedate, tranquilize and euthanize animals at
the instruction of the humane society, animal shelter or animal
control facility by which he or she is employed and under the
supervision of a humane officer or licensed veterinarian.
§30-10A-6. Recordkeeping.
A humane society, animal shelter or animal control facility
which was issued a controlled substances permit by the board of
pharmacy and an identification number by the federal drug
enforcement administration is responsible for insuring that
certified animal euthanasia technicians in its employ maintain
proper records regarding the inventory, storage and administration
of controlled substances
and any other drugs which he or she is
authorized to administer. The proper completion and retention of
these records is the joint responsibility of the humane society,
animal shelter or animal control facility and the certified animal
euthanasia technician. The humane society, animal shelter or
animal control facility and the certified animal euthanasia
technicians are subject to inspection and audit by the board, the
West Virginia board of pharmacy and any other appropriate state or
federal agency with authority regarding the recordkeeping,
inventory, storage and administration of controlled substances
used
and other drugs authorized for use by animal euthanasia technicians
under authority of this article.
§30-10A-8. Drug selection.
(a) In the event that sodium pentobarbital is no longer
approved as the euthanasia "drug of choice" for animals by either
state or federal mandate, the board shall determine the replacement
"drug of choice" for sodium pentobarbital for use by certified
animal euthanasia technicians by legislative rule. The replacement
"drug of choice" shall be administered, controlled, stored and
secured by a humane society, animal shelter or animal control
facility which meets the qualifications in section one of this
article in accordance with legislative rules promulgated by the
board.
(b) The board may replace sodium pentobarbital as the "drug of
choice" at any time by legislative rule promulgated pursuant to
article three, chapter twenty-nine-a of this code. The determined
"drug of choice" for animal euthanasia as specified by the board
shall be used by animal euthanasia technicians certified under the
provisions of this article.
(c) The board shall promulgate emergency rules pursuant to
section fifteen, article three, chapter twenty-nine of this code to
allow the use of sedatives and tranquilizers by euthanasia
technicians, as defined in section one of this article.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 501, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 501) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 528, Depositing certain fees in counties'
general funds.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-10. Fees to be charged by clerk of county commission.
For the purpose of this section, the word "page" is defined as being a paper or electronic writing of not more than legal size, 8
1/2" x 14".
The clerk of the county commission shall charge and collect
the following fees:
(a) When a writing is admitted to record, for receiving proof
of acknowledgment thereof, entering an order in connection
therewith, endorsing clerk's certificate of recordation thereon and
indexing in a proper index, where the writing is a:
(1) Deed of conveyance (with or without a plat), trust deed,
fixture filing or security agreement concerning real estate lease,
$15.
(2) Trustee's report of sale for any property for which
additional information and filing requirements are required by
section eight-a, article one, chapter thirty-eight of this code,
$40, provided that $20 dollars of each recording fee received
pursuant to this subdivision shall be deposited into the county's
general revenue fund and $20 dollars of each of the aforesaid
recording fees shall be paid by the county clerk to the State
Treasurer quarterly and deposited in the banking commissioner's
fund to cover its expenses in aggregating, collecting and
publishing the data.
(2) (3) Financing, continuation, termination or other
statement or writing permitted to be filed under chapter forty-six
of this code, $10.
(3) (4) Plat or map (with no deed of conveyance), $10 dollars.
(4) (5) Service discharge record, no charge.
(5) (6) Any document or writing other than those referenced in
subdivisions (1), (2), (3),
and (4)
and (5) of this subsection,
$10.
(6) (7) If any document or writing contains more than five
pages, for each additional page, $1.
For any of the documents admitted to record pursuant to this
subsection, if the clerk of the county commission has the
technology available to receive these documents in electronic form
or other media, the clerk shall set a reasonable fee to record
these writings not to exceed the cost for filing paper documents.
(7) Eleven dollars of each recording fee received pursuant to
subdivision (1) of this subsection shall be retained by the county
clerk for the operation of that office and $4 of each of the
aforesaid recording fees together with $5 of the recording fee
collected pursuant to subdivision (5) of this section shall be paid
by the county clerk into the State Treasury and deposited in equal
amounts for deposit into the Farmland Protection Fund created in
article twelve, chapter eight-a of this code for the benefit of the
West Virginia Agricultural Land Protection Authority and into the
Outdoor Heritage Conservation Fund created in article two-g,
chapter five-b of this code: Provided, That the funds deposited
pursuant to this subdivision may only be used for costs, excluding
personnel costs, associated with purpose of land conservation, as
defined in subsection (f), section seven, article two-g, chapter
five-b of this code.
(8) Of the fees collected pursuant to subdivision (1), subsection (a) of this section, $10 shall be deposited in the
county general fund in accordance with section twenty-eight of this
article and $1 shall be deposited in the county general fund and
dedicated to the operation of the county clerk's office. Four
dollars of the fees collected pursuant to subdivision (1),
subsection (a) of this section, and $5 of the fees collected
pursuant to subdivision (6), subsection (a) of this section, shall
be paid by the county clerk into the State Treasury and deposited
in equal amounts for deposit into the Farmland Protection Fund
created in article twelve, chapter eight-a of this code for the
benefit of the West Virginia Agricultural Land Protection Authority
and into the Outdoor Heritage Conservation Fund created in article
two-g, chapter five-b of this code: Provided, That the funds
deposited in the State Treasury pursuant to this subdivision may
only be used for costs, excluding personnel costs, associated with
purpose of land conservation, as defined in subsection (f), section
seven of said article.
(b) For administering any oath other than oaths by officers
and employees of the state, political subdivisions of the state or
a public or quasi-public entity of the state or a political
subdivision of the state, taken in his or her official capacity,
$5.
(c) For issuance of marriage license and other duties
pertaining to the marriage license (including preparation of the
application, administrating the oath, registering and recording the
license, mailing acknowledgment of minister's return to one of the licensees and notification to a licensee after sixty days of the
nonreceipt of the minister's return), $35.
(1) One dollar of the marriage license fee received pursuant
to this subsection shall be paid by the county clerk into the State
Treasury as a state registration fee in the same manner that
license taxes are paid into the Treasury under article twelve,
chapter eleven of this code;
(2) Fifteen dollars of the marriage license fee received
pursuant to this subsection shall be paid by the county clerk into
the State Treasury for the Family Protection Shelter Support Act in
the same manner that license taxes are paid into the Treasury under
article twelve, chapter eleven of this code;
(3) Ten dollars of the marriage license fee received pursuant
to this subsection shall be deposited in the Courthouse Facilities
Improvement Fund created by section six, article twenty-six,
chapter twenty-nine of this code.
(d) (1) For a copy of any writing or document, if it is not
otherwise provided for, $1.50.
(2) If the copy of the writing or document contains more than
two pages, for each additional page, $1.
(3) For annexing the seal of the commission or clerk to any
paper, $1.
(4) For a certified copy of a birth certificate, death
certificate or marriage license, $5.
(e) For copies of any record in electronic form or a medium
other than paper, a reasonable fee set by the clerk of the county commission not to exceed the costs associated with document search
and duplication.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 528--A Bill to amend and reenact §59-1-10
of the Code of West Virginia, 1931, as amended, relating to certain
fees collected by clerks of the county commission; creating a new
recording fee for the recording of certain trustee's reports of
sale; providing for the distribution of certain fees paid to the
clerk of the county commission for recording of certain documents.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 528, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 528) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2009, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 594, Requiring monthly fund installments
to Courtesy Patrol.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section twelve, lines ten and eleven, by striking
out the words "in equal monthly installments";
On page two, section twelve, line twelve, after the word
"Fund" by inserting the words "according to the following schedule:
On July 31 of each year, $850,000, and on the last day of each
month thereafter, $350,000";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 594--A Bill to amend and reenact §5B-2-12
of the Code of West Virginia, 1931, as amended, relating to the
transfer of moneys for the courtesy patrol program out of the
Tourism Promotion Fund.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 594, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 594) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 594) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, to take effect July 1, 2009, and requested the concurrence
of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 600, Relating to coal
reclamation tax.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 600--A Bill to amend and
reenact §22-3-11 of the Code of West Virginia, 1931, as amended,
relating to continuing and reimposing a special reclamation tax on
clean coal mined; and providing for legislative review of the tax
every two years.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 600, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 600) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 600) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 610, Relating to Film Industry Investment
Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Senate Bill No. 610--A Bill to amend and reenact §11-13X-
3, §11-13X-5, §11-13X-6, §11-13X-8, §11-13X-9 and §11-13X-13 of the
Code of West Virginia, 1931, as amended, all relating generally to
the West Virginia Film Industry Investment Act; providing and
eliminating definitions; increasing the amount of credit allowed in
certain years; providing requirements to claim credit; providing
for use of credit and transfer process; eliminating liability of
transferees for credit that is disqualified; authorizing issuance
of rules by the Secretary of Commerce for administration of the
film credit; and making amendments retroactively applicable to
taxable years beginning after December 31, 2007.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 610, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 610) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 636, Finding and declaring certain claims
against state.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 687, Relating to
Comprehensive Behavioral Health Commission.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §16-42-3, §16-42-5, §16-42-6 and §16-42-7 of the Code of
West Virginia, 1931, as amended, be amended and reenacted; and that
§27-17-1 of said code be amended and reenacted, all to read as
follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 42. COMPREHENSIVE BEHAVIORAL HEALTH COMMISSION.
§16-42-3. Comprehensive Behavioral Health Commission.
(a)
There is created Effective May 1, 2009, the Comprehensive
Behavioral Health Commission is reestablished within the Department
of Health and Human Resources
the Comprehensive Behavioral Health
Commission to
continue the study
of the current behavioral health
system, including substance abuse and domestic violence when those
conditions have an effect upon or are impacted by the system.
(b) The commission consists of:
(1) A representative of the circuit and family court system,
as appointed by the Chief Justice of the West Virginia Supreme
Court of Appeals;
(2) A representative of the Commissioner of the Division of
Corrections;
(3) The Commissioner of the Bureau of Senior Services
or a
designee;
(4) The Secretary of the Department of Health and Human
Resources
or a designee;
(5) The Commissioner of the Bureau for Behavioral Health and
Health Facilities
or a designee;
(6) The Commissioner of the Bureau for Children and Families
or a designee;
(7) The Executive Director of the West Virginia Chapter of the
National Alliance on Mental Illness
or a designee;
(8) The Chancellor for Higher Education
or a designee;
and
(9) One physician with a speciality in psychiatry appointed by
the Governor from a list provided by the West Virginia Medical
Association;
Each ex officio member may appoint a designee.
(10) One member of the House of Delegates,
who is a nonvoting
member, appointed by the Speaker; and
(11) One member of the Senate,
who is a nonvoting member,
appointed by the President.
serve as non-voting members The
Governor shall appoint a chairperson.
(c) The commission shall meet at times and places as it finds
necessary and shall be staffed by the Bureau for Behavioral Health
and Health Facilities and the Health Care Authority.
(d)
An Effective May 1, 2009, the advisory board
shall be
created is reestablished to serve in a consulting role to the
commission
members. The advisory board with the following members
shall be appointed by the Governor
as follows:
(1) One member from a list provided by the West Virginia
Chapter of the National Association of Social Workers;
(2) One member from a list provided by the West Virginia
Hospital Association;
(3) One member who is a psychologist from a list provided by
the West Virginia Psychological Association;
(4) One citizen member from a list of two nominees from each medical school;
(5) One member from a list of five nominees provided by the
Primary Care Association;
(6) One member from a list provided by the West Virginia
Behavioral Healthcare Providers Association;
(7) One member from a list provided by the West Virginia Child
Care Association; and
(8) One member from a list provided by the Council of
Churches.
(e) Those persons serving on the commission and the advisory
board on January 1, 2009, may continue serving on the reestablished
commission and advisory board and the person so designated as
chairperson of the commission shall remain as chairperson.
(e) (f) Each member of the commission and advisory board is
entitled to receive compensation and expense reimbursement for
attending official meetings or engaging in official duties not to
exceed the amount paid to members of the Legislature for their
interim duties as recommended by the Citizens Legislative
Compensation Commission and authorized by law. A commission member
may not receive compensation for travel days that are not on the
same day as the official meeting or official duties.
§16-42-5. Report.
The commission shall submit a
preliminary report
of its
progress in on its study,
including recommendations, to the
Governor and the Legislature by
the first day of January, two
thousand seven and a final report including its recommendations by the first day of January, two thousand eight. The Department of
Health and Human Resources shall submit a report to the Governor
and the Legislature by the first day of July, two thousand eight
regarding implementation of the recommendations of the commission.
The department shall report no less than quarterly to the
Legislative Oversight Commission on Health and Human Resources
Accountability January 1, 2011.
§16-42-6. Certificate of need standards.
Pursuant to the provisions of article two-d of this chapter,
the West Virginia Health Care Authority shall provide the
commission with information needed to complete the study required
in this article. The staff of the authority shall work jointly
with the staff of the Bureau for Behavioral Health and Health
Facilities in providing services to the commission. The commission
shall make recommendations in its
final report relating to the
certificate of need standards.
§16-42-7. Termination of commission.
The commission
ceases to exist on the thirty-first day of
January, two thousand nine, or after the submission of the
commission's final report, whichever occurs first and advisory
board terminate on June 30, 2011.
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 17. GROUP RESIDENTIAL FACILITIES.
§27-17-1. Definitions.
(a) "Developmental disability" means a chronic disability of
a person which: (1) Is attributable to a mental or physical impairment or combination of mental and physical impairments; (2)
is likely to continue indefinitely; (3) results in substantial
functional limitations in self-direction, capacity for independent
living or economic self-sufficiency; and (4) reflects the person's
need for a combination and sequence of special, interdisciplinary
or generic care, treatment or other services which are of lifelong
or extended duration and are individually planned and coordinated.
(b) "Behavioral disability" means a disability of a person
which: (1) Is attributable to severe or persistent mental illness,
emotional disorder or chemical dependency; and (2) results in
substantial functional limitations in self-direction, capacity for
independent living or economic self-sufficiency.
(c) "Group residential facility" means a facility which is
owned,
or leased
or operated by a behavioral health service
provider and which: (1) Provides residential services and
supervision for individuals who are developmentally disabled or
behaviorally disabled; (2) is occupied as a residence by not more
than eight individuals who are developmentally disabled and not
more than three supervisors, or is occupied as a residence by not
more than twelve individuals who are behaviorally disabled and not
more than three supervisors; (3) is licensed by the Department of
Health
or the division of human services and Human Resources; and
(4) complies with the State Fire Commission for residential
facilities.
(d) "Group residential home" means a building owned or leased
by developmentally disabled or behaviorally disabled persons for purposes of establishing a personal residence. A behavioral health
service provider may not lease a building to such persons if the
provider is providing services to the persons without a license as
provided for in this article.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 687--A Bill to amend and
reenact §16-42-3, §16-42-5, §16-42-6 and §16-42-7 of the Code of
West Virginia, 1931, as amended; and to amend and reenact §27-17-1
of said code, all relating to health; defining terms;
reestablishing the Comprehensive Behavioral Health Commission and
Advisory Board; reporting requirements; and terminating the
Comprehensive Behavioral Health Commission and Advisory Board.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 687, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 687) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 687) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 695, Relating to payment
for certain state employees' unused sick leave.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 761, Relating to illegal entries upon
certain property.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §61-3-12 and §61-3-29 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-12. Entry of building other than dwelling; entry of
railroad, traction or motorcar, steamboat or other vessel;
penalties; counts in indictment.
If any person shall, at any time, break and enter, or shall
enter without breaking, any office, shop, underground coal mine,
storehouse, warehouse, banking house or any house or building,
other than a dwelling house or outhouse adjoining thereto or
occupied therewith,
or any railroad or traction car, propelled by
steam, electricity or otherwise,
or any steamboat or other boat or
vessel,
or any commercial, industrial or public utility property
enclosed by a fence, wall or other structure erected with the
intent of the property owner of protecting or securing the area
within and its contents from unauthorized persons, within the
jurisdiction of any county in this state, with intent to commit a felony or any larceny, he or she shall be deemed guilty of a felony
and, upon conviction, shall be confined in a state correctional
facility not less than one nor more than ten years. And if any
person shall, at any time, break and enter, or shall enter without
breaking, any automobile, motorcar or bus, with like intent, within
the jurisdiction of any county in this state, he
or she shall be
guilty of a misdemeanor and, upon conviction, shall be confined in
jail not less than two nor more than twelve months and be fined not
exceeding $100.
An indictment for burglary may contain one or more counts for
breaking and entering, or for entering without breaking, the house
or building mentioned in the count for burglary under the
provisions of this
and the preceding section
and section eleven of
this article.
§61-3-29. Damage or destruction of railroad or public utility
company property, or real or personal property used for
producing, generating, transmitting, distributing, treating or
collecting electricity, natural gas, coal, water, wastewater,
stormwater, telecommunications or cable service; penalties;
restitution.
(a) Any person who knowingly and willfully damages or destroys
any real or personal property owned by a railroad company, or
public utility company, or any real or personal property used for
producing, generating, transmitting, distributing, treating or
collecting electricity, natural gas, coal, water, wastewater,
stormwater, telecommunications or cable service, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more
than two thousand dollars, or confined in jail not more than one
year, or both
fined and confined.
(b)
Any person who knowingly and willfully: (1) Damages or
destroys any real or personal property owned by a railroad company,
or public utility company, or any real or personal property used
for producing, generating, transmitting, distributing, treating or
collecting electricity, natural gas, coal, water, wastewater,
stormwater, telecommunications or cable service; and, (2) creates
a substantial risk of serious bodily injury to another or results
in the interruption of service to the public is guilty of a felony
and, upon conviction thereof, shall be fined not more than $5000,
or confined in a state correctional facility not less than one nor
more than three years, or both fined and imprisoned.
(c) Any person who knowingly and willfully: (1) Damages or
destroys any real or personal property owned by a railroad company,
or public utility company, or any real or personal property used
for producing, generating, transmitting, distributing, treating or
collecting electricity, natural gas, coal, water, wastewater,
stormwater, telecommunications or cable service; and, (2) causes
serious bodily injury to another is guilty of a felony and, upon
conviction thereof, shall be fined not less than $5,000 nor more
than $50,000, or confined in a state correctional facility not less
than one nor more than five years, or both
fined and imprisoned.
(c) (d) Nothing in this section may be construed to limit or
restrict the ability of an entity referred to in subsection (a),
or (b)
or (c) of this section or a property owner or other person who
has been damaged or injured as a result of a violation of this
section from seeking recovery for damages arising from violation of
this section.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 761--A Bill to amend and reenact §61-3-12
and §61-3-29 of the Code of West Virginia, 1931, as amended, all
relating to crimes committed on or against commercial, railroad or
public utility property; extending criminal penalties for
prohibited entry upon commercial property enclosed by a fence or
similar physical barrier or upon certain structures used for
utility transmission or distribution; clarifying the offense of
breaking and entering or entering without breaking onto public
utility property that is enclosed or fenced, with the intent to
commit a felony or larceny; establishing the felony offense of
knowingly and willfully damaging and destroying utility or railroad
property, resulting in the creation of a substantial risk of
serious bodily injury to another; and criminal penalties.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 761, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 761) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 13, Requesting Division of
Highways name bridge in Berkeley County "Bruce Van Wyk Memorial
Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 32, Requesting Division of
Highways name bridge in Boone County "Brian Scott 'Scotty' Ulbrich
Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 34, Requesting Division of
Highways name portion of U. S. 52 "R. A. West Memorial Highway".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 35, Requesting Division of
Highways name bridge in Mercer County "Staff Sergeant Stanley Brian
Reynolds Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 43, Requesting Division of
Highways name bridge in Grafton "Bearcat Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 44, Requesting Division of
Highways name Route 3 in Racine "Barry Lutsy Memorial Highway".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 48, Requesting Division of
Highways name bridge in Mercer County "Corporal Ray B. Cheatwood,
Jr., Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2684, West Virginia Drug
Offender Accountability and Treatment Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2753, Relating to the continuation of the Design-Build Program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 2950, Creating the Neighborhood Housing
and Economic Stabilization Program for low-income minority
neighborhoods.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 5--Requesting the Joint
Committee on Government and Finance study, safety issues
surrounding the delivery of services that occur during home visits
conducted by employees and contractors of the Department of Health
and Human Resources in the state of West Virginia.
Referred to the Committee on the Judiciary; and then to the
Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 6--Requesting the Joint
Committee on Government and Finance reconstitute Select Committee
A on Children, Juveniles and Other Matters during the Interim
period of the Seventy-Ninth Legislature.
Referred to the Committee on the Judiciary; and then to the
Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 59--Requesting the Legislature
establish a Joint Legislative Committee on Public Service
Commission Accountability and Effectiveness for the purpose of
studying the accountability and effectiveness of the Public Service
Commission, and proposing legislation consistent with the
committee's findings.
Referred to the Committee on Government Organization; and then
to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 61--Requesting the bridge in
Bruceton Mills crossing I-68 at the Bruceton Mills exit, mile
marker 23, in Preston County, West Virginia, specifically bridge
number 39-73/11-0.04(2835), be named the "Trooper First Class James
Thomas Brammer Memorial Bridge".
Referred to the Committee on Transportation and
Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 66--Requesting the Division of
Highways place commemorative signs at mile marker 65.5 of the north and south bound lanes of Interstate 64/Interstate 77 near Mahan in
Fayette County and on Route 19 one mile north of its intersection
with Route 61 near Oak Hill in Fayette County indicating that the
motorist is crossing the 38th parallel north in honor of the
veterans of the Korean War and particularly in memory of the
thousands who died in the pursuit of freedom for all mankind.
Referred to the Committee on Transportation and
Infrastructure.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 239, Allowing
majority vote for certain metro government approval.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, section four-a, by striking out all of section
four-a and inserting in lieu thereof the following:
(a) Notwithstanding any other provision of this chapter to the
contrary, where the election is on the question of consolidation of
a county with a population exceeding one hundred fifty thousand,
based on the 2000 or 2010 census of population taken under the
authority of the United States government, and a single Class I
city that is the principal municipality of the county, then metro government becomes effective pursuant to the charter if a majority
of the legal votes cast by the qualified voters of the principal
city and a majority of the legal votes cast by the qualified voters
of all incorporated and unincorporated areas of the affected
county, excluding the principal city, approves the consolidation.
(b) As used in this section, a Class I city is a municipality
so classified under section eight, article one, chapter eight of
this code.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 239, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bowman, Browning,
Caruth, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Unger, Wells, White, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Boley, Deem, Sypolt and Williams--5.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 239) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 521, Including telecommunications devices
as jail contraband.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-8. Aiding escape and other offenses relating to adults and
juveniles in custody or confinement; penalties.
(a) Where any adult or juvenile is lawfully detained in
custody or confinement in any jail, state correctional facility,
juvenile facility or juvenile detention center, if any other person
delivers anything into the place of custody or confinement of the
adult or juvenile with the intent to aid or facilitate the adult's
or juvenile's escape or attempted escape therefrom, or if the other
person forcibly rescues or attempts to rescue an adult or a
juvenile therefrom, the other person is guilty of a felony and,
upon conviction thereof, shall be confined in a state correctional
facility not less than one nor more than ten years.
(b) Where any adult or juvenile is lawfully detained in
custody or confinement in any jail, a state correctional facility or a juvenile facility or juvenile detention center, if any other
person delivers any money or other thing of value, any written or
printed matter, any article of merchandise, food or clothing, any
medicine,
telecommunication device, utensil or instrument of any
kind to the adult or juvenile without the express authority and
permission of the supervising officer and with knowledge that the
adult or juvenile is lawfully detained, the other person is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $50 nor more than $500 and confined in jail not less than
three nor more than twelve months:
Provided, That the provisions
of this section do not prohibit an attorney or his or her employees
from supplying any written or printed material to an adult or
juvenile which pertains to that attorney's representation of the
adult or juvenile.
(c)
(1) If any person transports any alcoholic liquor,
nonintoxicating beer, poison, implement of escape, dangerous
material, weapon, or any controlled substance as defined by chapter
sixty-a of this code onto the grounds of any jail, state
correctional facility, juvenile facility or juvenile detention
center within this state and is unauthorized by law to do so, or is
unauthorized by the persons supervising the facility, the person is
guilty of a felony and, upon conviction thereof, shall be fined not
less than $1,000 nor more than $5,000 or confined in a state
correctional facility not less than two years nor more than ten
years, or both, or, in the discretion of the court, be confined in
jail not more than one year and fined not more than $500.
(2) If any person willfully and knowingly transports or causes
to be transported any telecommunications device into or upon any
portion of any jail, state correctional facility, juvenile facility
or juvenile detention center within this state that is not
generally open and accessible to members of the public without
prior approval from the warden/administrator or designee, and such
person is unauthorized by law to do so, or is unauthorized by the
persons supervising the facility, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $100 nor more than $500 or confined in jail not more than one
year or both fined and confined.
(d) If any person delivers any alcoholic liquor,
nonintoxicating beer, poison, implement of escape, dangerous
material, weapon or any controlled substance as defined by chapter
sixty-a of this code to an adult or juvenile in custody or
confinement in any jail, state correctional facility, juvenile
facility or juvenile detention center within this state and is
unauthorized by law to do so, or is unauthorized by the persons
supervising the facility, the person is guilty of a felony and,
upon conviction thereof, shall be fined not less than $1,000 nor
more than $5,000 or confined in a state correctional facility not
less than one year nor more than five years, or both.
(e) Whoever purchases, accepts as a gift or secures by barter,
trade or in any other manner any article or articles manufactured
at or belonging to any jail, state correctional facility, juvenile
facility or juvenile detention center from any adult or juvenile detained therein is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $50 nor more than $500 and
confined in jail not less than three nor more than twelve months:
Provided, That the provisions of this subsection do not apply to
articles specially manufactured in any facility under the
authorization of the persons supervising the facility and which are
offered for sale within or outside of the facility.
(f) Whoever persuades, induces or entices or attempts to
persuade, induce or entice any person who is in custody or confined
in any jail, state correctional facility, juvenile facility or
juvenile detention center to escape therefrom or to engage or aid
in any insubordination to the persons supervising the facility is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $50 nor more than $500 and confined in jail not
less than three nor more than twelve months.
(g) (1) An inmate of a jail, state correctional facility,
juvenile facility or juvenile detention center having in his or her
possession any poison, implement of escape, dangerous material,
weapon,
telecommunications device or any controlled substance as
defined by chapter sixty-a of this code is guilty of a felony and,
upon conviction thereof, shall be fined not less than $1,000 nor
more than $5,000 or confined in a state correctional facility not
less than one year nor more than five years, or both, or, in the
discretion of the court, be confined in jail not more than one year
and fined not more than $500.
(2) An inmate of a jail, state correctional facility, juvenile facility or juvenile detention center having in his or her
possession any alcoholic liquor, nonintoxicating beer, money or
other thing of value, any written or printed matter, any article of
merchandise, food or clothing, any medicine,
telecommunication
device, utensil or instrument of any kind without the express
authority and permission of the supervising officer is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $50 nor more than $500 and confined in jail not more than
twelve months.
(h) As used in this section:
(1) "Dangerous material" means any incendiary material or
device, highly flammable or caustic liquid, explosive, bullet or
other material readily capable of causing death or serious bodily
injury.
(2) "Delivers" means to transfer an item to an adult or
juvenile who is detained in custody or confinement in any jail,
correctional facility, juvenile facility or juvenile detention
center or a building appurtenant to those places. The term
includes bringing the item into a jail, correctional facility,
juvenile facility or juvenile detention center or a building
appurtenant to those places. The term includes putting an item in
a place where it may be obtained by an inmate.
(3) "Inmate" means an adult or juvenile who is detained in
custody or confinement in any jail, correctional facility, juvenile
facility or juvenile detention center, regardless of whether the
individual is temporarily absent due to medical treatment, transportation, court appearance or other reason for a temporary
absence.
(4) "Implement of escape" means a tool, implement, device,
equipment or other item which an inmate is not authorized to
possess capable of facilitating, aiding or concealing an escape or
attempted escape by an inmate.
(5) "Telecommunication device" means any type of instrument,
device, machine or equipment which is capable of transmitting
telephonic, electronic, digital, cellular or radio communications
or any part of an instrument, device, machine or equipment which is
capable of facilitating the transmission of telephonic, electronic,
digital, cellular or radio communications
regardless of whether the
part itself is able to transmit. The term includes, but is not
limited to, cellular phones, digital phones and modem equipment
devices.
(6) "Weapon" means an implement readily capable of lethal use
and includes any firearm, knife, dagger, razor, other cutting or
stabbing implement or club. The term includes any item which has
been modified or adapted so that it can be used as a firearm,
knife, dagger, razor, other cutting or stabbing implement or club.
For purposes of this definition, the term "firearm" includes an
unloaded firearm or the unassembled components of a firearm.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 521, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 521) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 404, Creating
sesquicentennial commission and fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out the everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 13. WEST VIRGINIA SESQUICENTENNIAL OF THE AMERICAN CIVIL
WAR COMMISSION AND FUND.
§4-13-1. Findings; West Virginia Sesquicentennial of the American
Civil War Commission established; purpose.
(a) The Legislature finds that the role of West Virginia, its
creation as a state and the roles of individual West Virginians in
the American Civil War, from the time of John Brown's raid through
the formation of the State of West Virginia and the conclusion of
the American Civil War, are of such historical significance as to
warrant their commemoration.
(b) There is hereby created the West Virginia Sesquicentennial
of the American Civil War Commission.
(c) The purpose of the commission is to prepare for and
commemorate the sesquicentennial of West Virginia's participation
in the American Civil War.
§4-13-2. Membership; terms; filling vacancies; election of chair
and vice chair.
(a) The Governor shall appoint eleven members as follows:
(1) Three academic historians;
(2) The Secretary of the Department of Education and the Arts,
or a designee;
(3) One representative of the Division of Culture and History;
(4) One representative of the Division of Tourism;
(5) Five citizens members, no more than one of whom may be
from any one state senatorial district;
(6) One member of the House of Delegates, to be appointed by the Speaker of the House of Delegates, who shall serve as an ex
officio nonvoting member of the Commission; and
(7) One member of the Senate, to be appointed by the President
of the Senate, who shall serve as an ex officio nonvoting member of
the Commission.
(b) The members shall serve until July 1, 2021.
(c) Appointments to fill vacancies shall be for the unexpired
terms. Vacancies shall be filled in the same manner as the
original appointments.
(d) The commission shall elect a chair and a vice chair from
among its members.
§4-13-3. Expense reimbursement.
(a) Members shall serve without compensation.
(b) The commission may reimburse members for all reasonable
and necessary expenses actually incurred in the performance of his
or her duties as a commission member, in a manner consistent with
the guidelines of the travel management office of the Department of
Administration, subject to availability of funds received pursuant
to subdivision (1), subsection (a), section six of this article. No
provision of this section may be construed to require any
appropriation of funds by the Legislature.
§4-13-4. Quorum; meetings.
(a) A simple majority of the members serving on the board at
a given time constitutes a quorum for the transaction of business.
(b) Meetings shall be held in accordance with the provisions
of article nine-a, chapter six of this code.
§4-13-5. Advisory council.
The commission may establish an advisory council composed of
citizens at large who have knowledge of American Civil War history
and interest in its sesquicentennial celebration, to assist the
commission in its work.
§4-13-6. Powers; duties; limitation on duration of contracts.
(a) The commission may:
(1) Solicit, accept, use and dispose of gifts, grants,
donations, bequests or other funds or real or personal property for
the purpose of aiding or facilitating the work of the commission,
upon compliance with the provisions of section two, article two,
chapter twelve of this code;
(2) Procure supplies, services and property, and make or enter
into contracts, leases or other legal agreement as necessary to
carry out its duties:
Provided, That no contract, lease or other
legal agreement may be entered into by the commission with terms
which would extend beyond the termination date of the commission;
(3) Plan, develop and carry out programs and activities
appropriate to commemorate the sesquicentennial of the American
Civil War;
(4) Encourage civic, historical, educational, economic and
other organizations throughout West Virginia to organize and
participate in activities to expand the understanding and
appreciation of the American Civil War;
(5) Provide technical assistance to localities and nonprofit
organizations to further the commemoration of the sesquicentennial of the American Civil War;
(6) Develop programs and facilities to ensure that the
sesquicentennial commemoration of the American Civil War result in
a positive legacy and long-term public benefit;
(7) Encourage the development and conduct of programs designed
to involve all citizens in activities that commemorate the
sesquicentennial of the American Civil War; and
(8) Focus its activities on the role of West Virginia and its
creation as a state and the roles of individual West Virginians in
the American Civil War.
(b) The commission shall report to the Legislature at each
regular session and at the same time report to the Governor
concerning the action taken by the commission during the previous
year in carrying out the provisions of this article and make such
special reports as may be required by the Legislature and Governor.
§4-13-7. Termination of the commission.
The commission shall terminate on June 30, 2021.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 404--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §4-13-1, §4-13-2, §4-13-3,
§4-13-4, §4-13-5, §4-13-6 and §4-13-7, all relating to establishing
a West Virginia Sesquicentennial of the American Civil War
Commission; establishing findings and purpose; setting forth membership and terms; providing for compensation and expense
reimbursement; defining quorums; requiring meeting to be held in
accordance with the Open Governmental Proceedings Act; authorizing
the commission to establish an advisory council; setting forth
powers and duties of the commission; limiting duration of
contracts; and providing for the termination of the commission.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 404, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 404) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 404) takes effect from
passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the sixth order of business, which
agenda includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2819, Authorizing
miscellaneous agencies and boards to promulgate legislative rules.
Passed by the Senate on yesterday, Thursday, April 9, 2009,
The bill now being in the possession of the Senate.
On motion of Senator Kessler, the Senate reconsidered the vote
as to the effective date and passage.
The vote thereon having being reconsidered,
On motion of Senator Kessler, the Senate reconsidered its
action by which on yesterday, Thursday, April 9, 2009, it adopted
the Judiciary committee amendments to the bill (shown in the Senate Journal of that day, page 110).
The vote thereon having been reconsidered,
The question again being on the adoption of the Judiciary
committee amendments to the bill.
Thereafter, at the request of Senator Kessler, as chair of the
Committee on the Judiciary, and by unanimous consent, the Judiciary
committee amendments to the bill were withdrawn.
On motion of Senator Kessler, the following amendments to the
bill (Eng. Com. Sub. for H. B. No. 2819) were reported by the
Clerk, considered simultaneously, and adopted:
On page twenty, section seven, line twenty-seven, by striking
out "3" and inserting in lieu thereof "13";
And,
On page twenty, section seven, line twenty-seven, after the
word "authorized" by changing the period to a comma and adding the
following: with the following amendment:
On pages one and two, section seven, by striking out all of
subsection 1.5.
The bill, as just amended, was again ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2819) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2819) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2819) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
On motion of Senator Kessler, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2968, Requiring the State
Fire Commission to establish safety standards for liquefied
petroleum gas systems.
Passed by the Senate on yesterday, Thursday, April 9, 2009,
The bill now being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered the vote
by which it adopted Senator Chafin's motion that Engrossed
Committee Substitute for House Bill No. 2968 take effect from
passage.
Thereafter, at the request of Senator Chafin, and by unanimous
consent, his aforestated motion was withdrawn.
On motion of Senator Kessler, the Senate reconsidered its
action by which on yesterday, Thursday, April 9, 2009, it adopted
the Judiciary committee amendment to the title of the bill (shown
in the Senate Journal of that day, page 56).
The vote thereon being reconsidered,
The question again being on the adoption of the Judiciary
committee amendment to the title of the bill.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the Judiciary committee
amendment to the title of the bill was withdrawn.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2968--A Bill
to amend the
Code of West Virginia, 1931, as amended, by adding thereto two new
sections, designated §29-3-5c and §29-3-16d, all relating to
requiring the State Fire Commission to establish safety standards
for fuel gas systems; requiring the State Fire Commission to
establish safety standards for liquefied petroleum gas systems
; and
requiring the State Fire Commission to establish safety standards
for non-owner or occupant installation, maintenance or service of
fuel gas systems in one or two family dwellings.
The bill, as just amended, was read a third time and put upon
its passage.
Om the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of those present and voting having voted in the
affirmative, the President declared the bill (Eng. Com. Sub. for H.
B. No. 2968) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2968) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Chafin offered the following resolution:
Senate Resolution No. 56--Recognizing Virginia L. Branham-
Lewis for her commitment and dedication to public service.
Whereas, Virginia L. Branham-Lewis has been an honorable,
diligent and loyal public servant since 1978 when she was hired by
the Mingo County Commission as a secretary/clerk for the Housing
Authority of Mingo County; and
Whereas, Virginia L. Branham-Lewis became executive director
of the Housing Authority of Mingo County in 1981 and has expanded
the authority to provide rental assistance to over 1,400 families
in a five-county region; and
Whereas, Under the guidance of Virginia L. Branham-Lewis, the
Housing Authority of Mingo County tenaciously pursued funds to
purchase a 35-unit public housing complex and gut and remodel a
10,000 square foot building which has become the administrative
offices of the authority; and
Whereas, Since 2001, Virginia L. Branham-Lewis has coordinated
efforts between various agencies to provide loans to qualified
borrowers totaling $13,360,702, making the American dream of home
ownership a reality for many individuals and families; and
Whereas, Virginia L. Branham-Lewis has been instrumental in
securing more than $25 million in water projects for Mingo County
and bringing public transportation to the area through Tri-Rivers Transit; and
Whereas, Virginia L. Branham-Lewis has served as Vice
President of the Mingo County Redevelopment Authority, Vice
President/Treasurer of the West Virginia Association of Housing
Agencies and Secretary of the West Virginia Affordable Housing
Trust Fund; and
Whereas, Virginia L. Branham-Lewis has been a role model to
her colleagues and the people she serves and her high degree of
professional integrity exemplifies the public's expectations for
the conduct of a public servant; and
Whereas, After 31 years of public service, Virginia L.
Branham-Lewis will enjoy the fruits of her labor through well-
deserved retirement; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes Virginia L. Branham-Lewis
for her commitment and dedication to public service; and, be it
Further Resolved, The Senate extends its sincere appreciation
to Virginia L. Branham-Lewis for her exemplary service and
expresses its best wishes to her on the occasion of her retirement
and for any future endeavors she may choose to undertake; and, be
it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Virginia L. Branham-Lewis.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from the
Senate third reading calendar, Engrossed House Bill No. 2050 and
Engrossed Committee Substitute for House Bill No. 3275.
Senator Chafin also announced that in the same meeting, the
Committee on Rules had returned to the Senate calendar, on third
reading, Engrossed Committee Substitute for House Bill No. 2530;
and on second reading, Engrossed Committee Substitute for House
Bill No. 2690
, under rule number seventeen of the Rules of the
Senate.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 57, Requesting Joint
Committee on Government and Finance study proposed new state
business and occupation tax on high-voltage electric power
transmission lines.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 59, Requesting Joint
Committee on Government and Finance study improving and updating
severance tax on natural gas and oil.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 60, Requesting Joint
Committee on Government and Finance study grants through Economic
Development Grant Committee.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 62, Requesting Joint
Committee on Government and Finance study tax structure.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 64, Requesting Joint
Committee on Government and Finance study carbon dioxide cap and
trade proposals.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 65, Requesting Joint
Committee on Government and Finance study fireworks' sale, storage
and usage.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 66, Requesting Joint
Committee on Government and Finance study costs of highways, sewers
and water projects.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 67, Requiring Joint Committee
on Government and Finance study asbestos trust disclosure issues.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 69, Urging congressional
delegation support Main Street Fairness Act.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Finance.
Senate Concurrent Resolution No. 70, Requesting Division of
Highways name bridge in Scott Depot "Trooper William 'Bill'
Phillips Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation and Infrastructure.
Senate Concurrent Resolution No. 71, Recognizing importance of
oil and natural gas industry.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Bowman, and by unanimous
consent, the remarks by Senator Green regarding the adoption of
Senate Concurrent Resolution No. 71 were ordered printed in the Appendix to the Journal.
At the request of Senator Hall, unanimous consent being
granted, the remarks by Senator Deem regarding the adoption of
Senate Concurrent Resolution No. 71 were ordered printed in the
Appendix to the Journal.
Senate Concurrent Resolution No. 72, Requesting Joint
Committee on Government Organization and Finance study hiring
retired state employees for current positions within Division of
Personnel.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 771, Making supplemental appropriation of
federal funds to various accounts.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending extended discussion,
The question being "Shall Engrossed Senate Bill No. 771 pass?"
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 771) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 771) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 772, Making supplemental appropriation to
various accounts.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 772) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 772) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 773, Making supplemental appropriation to
Department of Agriculture, Land Protection Authority.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 773) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 773) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2050, Expanding the counties covered by West Virginia Route 2 and Interstate 68 Authority to include
Cabell, Mason and Jackson counties; and increasing the number of
members.
Having been removed from the Senate third reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2418, Relating to exempting
certain records of the Division of Corrections and Regional Jail
Authority from the Freedom of Information Act that, if released,
could aid inmates in committing unlawful acts.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2418) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2419, Providing inmates a
reduction in sentence for completion of education and rehabilitation programs.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2419) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2423, Relating to the Board
of Medical Imaging and Radiation Therapy Technology.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2423) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2423) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2530, Relating to further
defining professional student support personnel.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2530) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2530--A Bill
to amend and
reenact §18-9A-2, §18-9A-3a and §18-9A-9 of the Code of West
Virginia, 1931, as amended, all relating to further defining
professional student support personnel; clarifying definition of
net enrollment; modifying method for computing increase in net
enrollment for certain counties; providing for computation of
certain personnel allowances for certain fiscal years based on
number of personnel that would be eligible based on net enrollment;
and including professional student support personnel in the public
school support formula allowance calculations for current expense
and faculty senates.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2530) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2567, Relating to filing
agency rules with the Secretary of State under the Administrative
Procedures Act.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2567) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2695, Providing criminal
penalties for a hunter who fails to render aid to a person the
hunter shoots while hunting.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2695) passed.
The following amendment to the title of the bill, from the
Committee on Natural Resources, was reported by the Clerk and
adopted:
Eng. Com. Sub. For House Bill No. 2695--A Bill to amend and
reenact §20-2-27, §20-2-28 and §20-2-57 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto three new sections, designated §20-2-42x, §20-2-57a and 20-
2-57b, all relating to hunting and wildlife resources generally;
establishing the senior resident lifetime hunting, fishing and trapping license and fee of $15; allowing persons who are sixty-
five years of age before January 1, 2010, to remain exempt from the
purchase of the license; amending crimes and penalties for
negligent shooting of animals and damage to property by a person
while hunting; amending crimes and penalties for negligent or
reckless shooting, wounding, injuring or killing of another person
while hunting; creating misdemeanor and felony offenses for a
person who knowingly refuses or fails to render reasonable
assistance to the injured person; defining reasonable assistance;
prohibiting hunting while intoxicated; creating misdemeanor offense
of hunting while intoxicated; creating misdemeanor and felony
offenses for shooting, wounding or killing another person while
hunting under the influence of alcohol, controlled substances or
drugs; providing for the suspension of hunting and fishing license
for misdemeanor and felony violations; and criminal and civil
penalties
.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2719, Relating to the sale
and distribution of craft beer.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Bowman, Browning,
Caruth, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard,
Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--30.
The nays were: Barnes, Boley, Deem and Guills--4.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2719) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Without objection, the Senate returned to the third order of
business.
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor:
Executive Communications
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
April 10, 2009
Senate Executive Message No. 9
TO:
The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully withdraw the following nomination for your
advice and consent from Executive Message No. 2, dated February 24,
2009, by way of the nominee requesting to have his name removed:
22.For Member, Public Employees Insurance Agency Finance Board, Perry Bryant, Charleston, Kanawha County, for the term
ending June 30, 2012.
Thank you for correcting your records.
Sincerely,
Joe Manchin III,
Governor.
Which communication was received and referred to the Committee
on Confirmations.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate recessed until 3 p.m.
today.
Upon expiration of the recess, the Senate reconvened and
resumed consideration of its third reading calendar, the next bill
coming up in numerical sequence being
Eng. Com. Sub. for House Bill No. 2737, Authorizing the
Administrative Director of the Supreme Court of Appeals to hire
regional or specialized probation officers.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: Helmick--1.
Absent: Prezioso--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2737) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2771, Relating to the West
Virginia Alcohol and Drug-Free Workplace Act.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 2771 pass?"
On the passage of the bill, the yeas were: Bowman, Browning,
Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--30.
The nays were: Barnes, Boley, Caruth and Sypolt--4.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2771) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2771--A Bill to amend and
reenact §21-1D-2 and §21-1D-8 of the Code of West Virginia, 1931,
as amended; and to amend said code by adding thereto two new
sections, designated §21-1D-5a and §21-1D-7b, all relating to West
Virginia Alcohol and Drug-Free Workplace Act; defining that a
contract under this section shall only include those whose value is
over $100,000; defining a preemployment drug test; defining a
preemployment drug test; requiring the submission of a sworn
statement regarding a drug-free workplace; providing that workers
who comply with that United States Department of Transportation
drug testing guidelines are not required to submit to additional
tests; requiring a report to public authority who let the contract;
and providing criminal penalties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Guills, and by unanimous
consent, the remarks by Senators Barnes and Caruth regarding the
passage of Engrossed Committee Substitute for House Bill No. 2771
were ordered printed in the Appendix to the Journal.
Eng. House Bill No. 2801, Updating language and making
technical changes and clarifications of the West Virginia Board of
Medicine.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Kessler, unanimous consent being granted, further consideration of the bill was deferred until the
conclusion of bills on today's third reading calendar.
At the request of Senator Kessler, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
The Senate again proceeded to the eighth order of business.
Eng. House Bill No. 2841, Extending the time for the city
council of Richwood to meet as a levying body.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2841) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2841) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2860, Regulating the
sequestration and storage of carbon dioxide.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2860) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2869, Lengthening the time
frame for the filing of post-primary and post general campaign
financial statements.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2869) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2913, Relating to the Statewide
Independent Living Council.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2913) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2913) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2981, Relating to primary elections and
nominating procedures of third-party candidates.
On third reading, coming up in regular order, with the
unreported Judiciary committee amendment pending, and with the
right having been granted on Wednesday, April 8, 2009, for further amendments to be received on third reading, was reported by the
Clerk.
At the request of Senator Kessler, unanimous consent being
granted, further consideration of the bill and the pending
unreported Judiciary committee amendment was deferred until the
conclusion of bills on today's second reading calendar.
Eng. Com. Sub. for House Bill No. 2999, Relating to the
Streamlined Sales and Use Tax Agreement and the West Virginia
consumers sales and service tax and use tax.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2999) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2999) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3011, Repealing the section of code
relating to limitation on political activity of officers or
employees in the administration of the Vocational Rehabilitation
Program.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 3011) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3063, Relating to hunting,
tagging and reporting bear.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3063) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3240, Giving the
Commissioner of Motor Vehicles authority to approve all-terrain
vehicle rider safety awareness courses.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3240) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3275, Changing the date
through which governmental entities are required to purchase
workers' compensation.
Having been removed from the Senate third reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3295, Relating to the West Virginia State
Treasurer's Office.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed House Bill No. 3295 pass?"
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3295) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3295) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The end of today's third reading calendar having been reached,
the Senate returned to the consideration of
Eng. House Bill No. 2801, Updating language and making
technical changes and clarifications of the West Virginia Board of Medicine.
On third reading, coming up in deferred order, was again
reported by the Clerk.
At the request of Senator Bowman, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's second reading calendar, following
consideration of Engrossed House Bill No. 2981, already placed in
that position.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2309, Updating the law
governing the practice of occupational therapy.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §30-28-1, §30-28-2, §30-28-3, §30-28-4, §30-28-5,
§30-28-6, §30-28-7, §30-28-8, §30-28-9, §30-28-10, §30-28-11,
§30-28-12, §30-28-13, §30-28-14, §30-28-15, §30-28-16, §30-28-17
and §30-28-18 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto three new sections, designated §30-28-19, §30-28-20
, and
§30-28-21, all to read as follows:
ARTICLE 28. WEST VIRGINIA OCCUPATIONAL THERAPY PRACTICE ACT.
§30-28-1. Short title.
This article is known and may be cited as the "West Virginia
Occupational Therapy Practice Act".
§30-28-2. Applicable law.
The practices licensed under the provisions of this article
and the West Virginia Board of Occupational Therapy are subject to
the provisions of article one of this chapter, the provisions of
this article, and any rules promulgated hereunder.
§30-28-3. Definitions.
As used in this article, the following words and terms have
the following meanings, unless the context clearly indicates
otherwise:
(a) "Association" means the West Virginia Occupational Therapy
Association.
(b) "Board" means the West Virginia Board of Occupational
Therapy.
(c) "Business entity" means any firm, partnership,
association, company, corporation, limited partnership, limited
liability company or other entity doing business in the State of
West Virginia.
(d) "Client-related tasks" means tasks which are related to
treatment and which, when performed by an occupational therapy
aide, must be performed under direct supervision, including routine
transfers, routine care of a patient's personal needs during the
course of treatment, execution of an established routine activity
or exercise, and assisting the supervising occupational therapist
or occupational therapy assistant as directed during the course of treatment.
(e) "Direct supervision" means the actual physical presence of
a licensed supervising occupational therapist or licensed
occupational therapy assistant, and the specific delineation of
tasks and responsibilities for personally reviewing and
interpreting the results of any habilitative or rehabilitative
procedures conducted by the limited permit holder, occupational
therapy student, or aide. Direct supervision includes direct close
supervision and direct continuous supervision.
(f) "Direct close supervision" means the licensed supervising
occupational therapist or licensed occupational therapy assistant
is in the building and has daily direct contact at the site of
work.
(g) "Direct continuous supervision" means the licensed
supervising occupational therapist or licensed occupational therapy
assistant is physically present and in direct line of sight of the
occupational therapy student or aide.
(h) "General supervision" means initial direction and periodic
inspection of the activities of a licensed occupational therapist
assistant by the supervising licensed occupational therapist, but
does not necessarily require constant physical presence on the
premises while the activities are performed.
(i) "License" means a valid and current license issued by the
board under the provisions of this article.
(j) "Nonclient-related tasks" means tasks which are not
related to treatment and do not require independent clinical reasoning, including clerical and maintenance activities,
housekeeping, preparation of the work area or equipment,
transporting patients, and ordering supplies, and which, when
performed by an occupational therapy aide, must be performed under
general supervision.
(k) "Occupational Therapist" means a person licensed by the
board under the provisions of this article to engage in the
practice of occupational therapy.
(l) "Occupational Therapy Assistant" means a person licensed
by the board under the provisions of this article to assist in the
practice of occupational therapy under the general supervision of
an Occupational Therapist.
(m) "Occupational Therapy Aide" means a person who may provide
nonclient-related tasks under general supervision, or specifically
delegated client-related tasks, subject to the conditions set forth
in subsection (f), section four of this article, under direct
supervision of an Occupational Therapist or an Occupational Therapy
Assistant, in accordance with the provisions of this article.
(n) "The practice of occupational therapy" means the
therapeutic use of everyday life activities or occupations to
address the physical, cognitive, psychosocial, sensory, and other
aspects of performance of individuals or groups of individuals,
including those who have or are at risk for developing an illness,
injury, disease, disorder, condition, impairment, disability,
activity limitation or participation restriction, to promote
health, wellness and participation in roles and situations in home, school, workplace, community and other settings.
§30-28-4. Scope of practice; license and supervision requirements.
(a) The scope of practice of occupational therapy includes,
but is not limited to:
(1) Methods or strategies selected to direct the process of
interventions such as:
(A) Establishment, remediation, or restoration of a skill or
ability that has not yet developed or is impaired;
(B) Compensation, modification, or adaptation of activity or
environment to enhance performance;
(C) Maintenance and enhancement of capabilities without which
performance in everyday life activities would decline;
(D) Health promotion and wellness to enable or enhance
performance in everyday life activities; and
(E) Prevention of barriers to performance, including
disability prevention.
(2) Evaluation of factors affecting activities of daily living
(ADL), instrumental activities of daily living (IADL), education,
work, play, leisure and social participation, including:
(A) Client factors, including body functions and body
structures;
(B) Habits, routines, roles and behavior patterns;
(C) Cultural, physical, environmental, social and spiritual
contexts and activity that affect performance; and
(D) Performance skills, including motor, process and
communication/interaction skills.
(3) Interventions and procedures to promote or enhance safety
and performance in activities of daily living (ADL), instrumental
activities of daily living (IADL), education, work, play, leisure
and social participation, including:
(A) Therapeutic use of occupations and preparatory, adjunctive
and functional activities;
(B) Training in self-care, self-management home management and
community/work reintegration;
(C) Development, remediation, or compensation of physical,
cognitive, neuromuscular, sensory functions, visual, vestibular and
behavioral skills;
(D) Therapeutic use of self, including one's personality,
insights, perceptions and judgments, as part of the therapeutic
process;
(E) Education and training of individuals, including family
members, care givers and others;
(F) Care coordination, case management and transition
services;
(G) Consultative services to groups, programs, organizations
or communities;
(H) Modification of environments (home, work, school or
community) and adaptation of processes, including the application
of ergonomic principles;
(I) Assessment, design, fabrication, application, fitting and
training in assistive technology, adaptive devices, orthotic
devices and training in the use of prosthetic devices to enhance occupational performance;
(J) Assessment, recommendation and training in techniques to
enhance functional mobility, including wheelchair management;
(K) Community mobility and re-entry;
(L) Management of feeding, eating and swallowing to enable
eating and feeding performance; and
(M) Application of physical agent modalities, and use of a
range of specific therapeutic procedures and techniques to enhance
occupational performance skills. Use of physical agent modalities
by occupational therapy assistants must be consistent with their
education (e. g., superficial thermal and mechanical modalities)
and used under the general supervision of an occupational
therapist. The use of deep thermal or electrical modalities may
only be performed by the occupational therapy assistant under the
direct supervision of an occupational therapist, until the board
shall promulgate rules as well as establish competency standards
for the use of the modalities.
(b) No person may engage in the practice of occupational
therapy or present herself or himself as an occupational therapist
or occupational therapy assistant in this state, or use the words
"occupational therapist", "licensed occupational therapist",
"occupational therapist registered", "occupational therapy
assistant", "licensed occupational therapy assistant", "certified
occupational therapy assistant" or "occupational therapy aide", or
the letters "O.T.", "L.O.T.", "O.T.R.", "O.T.A.", "L.O.T.A.",
"C.O.T.A." or any other words, letters, abbreviations or insignia indicating or implying that he or she is an occupational therapist
or occupational therapy assistant, unless he or she holds a valid,
current license issued in accordance with the provisions of this
article, which has not expired, been suspended or revoked.
(c) No business entity may advertise or otherwise offer to
provide or convey the impression that it is providing occupational
therapy unless an individual holding a current valid license or
permit under this article renders the occupational therapy services
to which reference is made.
(d) An occupational therapy assistant may assist in the
practice of occupational therapy under the general supervision of
an occupational therapist.
(e) An occupational therapist or an occupational therapy
assistant may delegate nonclient-related tasks to an occupational
therapy aide only under the following conditions:
(1) The occupational therapy aide functions under the general
supervision of either the occupational therapist or the
occupational therapy assistant who is under the general supervision
of the occupational therapist; and
(2) The occupational therapy aide provides only tasks for
which he or she has been trained and has demonstrated competence.
(f) An occupation therapist or an occupational therapy
assistant may delegate specifically selected client-related tasks
to an occupational therapy aide only under the following
conditions:
(1) The occupational therapy aide functions under the direct continuous supervision of either the occupational therapist or the
occupational therapy assistant that is under the general
supervision of the occupational therapist;
(2) The occupational therapy aide provides only tasks for
which he or she has been trained and has demonstrated competence;
(3) The outcome anticipated for the delegated task is
predictable;
(4) The client and the environment are stable and will not
require judgment, interpretation or adaptation by the occupational
therapy aide; and
(5) The supervising occupational therapist is responsible for
the tasks delegated to the occupational therapy aide.
§30-28-5. West Virginia Board of Occupational Therapy.
(a) The West Virginia Board of Occupational Therapy is
continued with the following five members appointed by the governor
by and with the advice and consent of the Senate:
(1) Three licensed occupational therapists;
(2) One licensed occupational therapy assistant; and
(3) One citizen member,
who is not licensed under the
provisions of this article.
(b) The occupational therapist and occupational therapy
assistant members shall have been engaged in rendering occupational
therapy services to the public, teaching, consulting or conducting
research in occupational therapy for at least three years
immediately preceding their appointments.
(c) No board member may serve as an officer of the West Virginia Occupational Therapy Association concurrently with his or
her service on the board.
(d) The members of the board in office on December 31, 2008,
shall, unless sooner removed, continue to serve until their
respective terms expire or their successors have been appointed and
qualified.
(e) The term shall be for three years commencing on January 1.
A member may not serve more than two consecutive full terms. A
member having served two consecutive full terms may not be
appointed for one year after completion of his or her second full
term. A member may continue to serve until a successor has been
appointed and qualified.
(f) 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.
(g) Each member of the board must be a resident of this state
during the appointment term.
(h) 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.
(i) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(j) 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.
(k) The board shall elect annually one of its members as
chairperson who serves at the will of the board.
(l) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(m) A majority of the members of the board constitutes a
quorum.
(n) The board shall hold at least two annual meetings. Other
meetings may be held at the call of the chairperson or upon the
written request of two members, at the time and place as designated
in the call or request.
(o) 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 IV of the constitution of this state.
§30-28-6. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by legislative rule, in article one of this chapter and
elsewhere in law.
(b) The board shall:
(1) Hold meetings and conduct hearings;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and
rejecting applications for licenses and permits;
(4) Determine the qualifications of any applicant for a license or permit;
(5) Propose rules for legislative approval relating to
professional conduct and ethical standards of practice;
(6) Communicate disciplinary actions to relevant state and
federal authorities, the National Board for Certification in
Occupational Therapy (NBCOT), the American Occupational Therapy
Association (AOTA) and other applicable authorities when public
safety is at risk;
(7) Maintain an office and hire, discharge, establish the job
requirements and fix the compensation of employees and contracted
employees necessary to enforce the provisions of this article
including, but not limited to, the executive secretary;
(8) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
board;
(9) Conduct disciplinary hearings of persons regulated by the
board;
(10) Determine disciplinary action and issue orders;
(11) Institute appropriate legal action for the enforcement of
the provisions of this article;
(12) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(13) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(14) Establish by legislative rule the continuing education
and competency requirements for licensees;
(15) Issue, renew, combine, deny, suspend, revoke or reinstate
licenses and permits;
(16) Establish a fee schedule;
(17) Take all other actions necessary and proper to effectuate
the purposes of this article; and
(18) Propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article.
(c) The board may:
(1) Approve and 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 assistants
in connection with legal matters and questions.
§30-28-7. 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 and permits;
(2) Designate third parties to establish educational
requirements and to prepare and/or administer examinations and
reexaminations;
(3) Procedures for the issuance and renewal of a license,
temporary license and limited permit;
(4) A fee schedule;
(5) Continuing education and competency requirements for
licensees;
(6) Establishment of competency standards;
(7) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of a licensee or permittee;
(8) Requirements for reinstatement of revoked licenses; and
(9) Any other rules necessary to effectuate the provisions of
this article.
(b) The board is authorized to promulgate emergency rules in
accordance with section fifteen, article three, chapter twenty-
nine-a of this code to establish competency standards for advance
treatment techniques as set forth in subdivision six, subsection
(a) of this section.
(c) All rules in effect on the effective date of this article
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.
§30-28-8. 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 Occupational Therapy
", 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.
§30-28-9. Persons and practices not affected.
This article does not prevent or restrict the practice,
services or activities of:
(1) Any person licensed under any other law of this state
performing services within the authorized scope of practice for
which he or she is licensed;
(2) Any person pursuing a course of study leading to a degree
in Occupational Therapy from an accredited educational program if
the person acts under the supervision of a clinical supervisor or
instructor of the accredited education program and is designated by
a title which clearly indicates his or her status as a student; or
(3) Any person fulfilling the supervised fieldwork experience
requirements of section ten of this article.
§30-28-10. Qualifications of applicants for license.
To be eligible for a license to engage in the practice of
occupational therapy, the applicant must:
(1) Be of good moral character;
(2) Have successfully completed the academic requirements of
an educational program for Occupational Therapists or Occupational
Therapy Assistants that is accredited by the American Occupational
Therapy Association's Accreditation Council for Occupational Therapy Education (ACOTE) or its predecessor organizations;
(3) Have successfully completed a period of supervised
fieldwork experience required by the recognized educational
institution where he or she met the academic requirements;
(4) Have passed an examination approved by the board;
(5) Have filed an application on forms provided by the board;
and
(6) Have paid the applicable fee.
§30-28-11. Examination.
(a) A person who has met the requirements of subsections (1),
(2) and (3), section ten of this article, may make application for
examination.
(b) Each applicant for licensure shall be examined by written
or computerized examination to test his or her knowledge of the
basic and clinical sciences relating to occupational therapy, and
occupational therapy theory and practice, including the
professional skills and judgment of the applicant in the
utilization of occupational therapy techniques and methods, and
other subjects the board may require to determine the fitness for
practice of the applicant. The examination may be administered by
the National Board for Certification in Occupational Therapy, Inc.
(NBCOT) or another nationally recognized credentialing body as
approved by the board.
§30-28-12. Licensees from other jurisdictions; internationally
educated applicants.
(a) The board may issue a license to practice to any applicant who presents proof of current licensure as an occupational
therapist or an occupational therapy assistant in another
jurisdiction which requires standards for licensure considered by
the board or by a board-approved credentialing agency to be
equivalent to the requirements for licensure in this state and who
meets the requirements of section ten of this article.
(b) The board may grant a license to an applicant who was
educated outside of the United States or its territories in an
educational program whose standards are determined by the board or
by a board-approved credentialing agency to be equivalent to the
standards required for licensure in this state and who meets the
requirements of section ten of this article.
(c) In its discretion, the board may examine a person by a
written, oral or skills test for licensing under this section, and
may enter into agreements for reciprocal licensing with other
jurisdictions having substantially similar requirements for
licensure.
§30-28-13. Issuance of a license, limited permit and temporary
license.
(a) The board shall issue a license to any person who meets
the requirements of this article upon payment of the license fee
prescribed.
(b) The board may issue a limited permit to persons who have
completed the education and fieldwork experience requirements of
this article. The holder of a limited permit may practice
occupational therapy only under the direct close supervision of an occupational therapist who holds a current license in this state.
A limited permit is not renewable, and is valid for ninety days:
Provided, That the limited permit expires immediately if the holder
receives notification of a failing score on the examination.
(c) The board may issue a temporary license to an occupational
therapist or an occupational therapy assistant who is licensed and
in good standing in a jurisdiction whose standards are determined
by the board or by a board-approved credentialing agency to be
equivalent to the standards required for licensure in this state
and who has submitted an application and the required fee. The
holder of a temporary license may practice occupational therapy
only in accordance with the provisions of this article. A
temporary license is nonrenewable and is valid for thirty days.
(d) The board shall prescribe the form of licenses. The
licensee shall conspicuously display the license or a copy of the
license at his or her principal place of employment. The licensee
shall produce the original license upon the request of the board.
§30-28-14. Renewal of license; renewal of lapsed license;
suspension, revocation and refusal to renew; reinstatement of
revoked license.
(a) Licenses may be renewed biennially upon documentation of
required continuing education and payment of a renewal fee.
(b) A license which has lapsed may be renewed within one year
of its expiration date in the manner set by the board. After the
expiration of one year, a license may be renewed only by complying
with the requirements relating to the issuance of an original license.
(c) The board may suspend, revoke or refuse to renew a license
for any reason which would justify the denial of an original
application for licensure.
(d) The board may consider the reinstatement of a license
which has been revoked upon a showing that the applicant can resume
practicing with reasonable skill and safety.
§30-28-15. Special volunteer occupational therapist license; civil
immunity for voluntary services rendered to indigents.
(a) There is established a special volunteer occupational
therapist license for occupational therapists who are retired or
are retiring from the active practice of occupational therapy and
who wish to donate their expertise for the care and treatment of
indigent and needy patients in the clinical setting of clinics
organized, in whole or in part, for the delivery of health care
services without charge.
(b) The special volunteer occupational therapist license shall
be issued by the board to occupational therapists licensed or
otherwise eligible for licensure under this article without the
payment of an application fee, license fee or renewal fee, and the
initial license 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
license provided in this section which shall contain the
occupational therapist's acknowledgment that:
(1) The occupational therapist's practice under the special
volunteer occupational therapist license will be exclusively
devoted to providing occupational therapy care to needy and
indigent persons in West Virginia;
(2) The occupational therapist will not receive any payment or
compensation, either direct or indirect, or have the expectation of
any payment or compensation, for any occupational therapy services
rendered under the special volunteer occupational therapist
license;
(3) The occupational therapist will supply any supporting
documentation that the board may reasonably require; and,
(4) The occupational therapist agrees to continue to
participate in continuing education as required by the board for a
special volunteer occupational therapists license.
(d) Any occupational therapist who renders any occupational
therapy 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 occupational
therapist 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
occupational therapy service at the clinic unless the act or
omission was the result of the occupational therapist's gross
negligence or willful misconduct. In order for the immunity under
this subsection to apply, before the rendering of any services by the occupational therapist at the clinic
, there must be a written
agreement between the occupational therapist and the clinic stating
that the occupational therapist will provide voluntary
uncompensated occupational therapy services under the control of
the clinic to patients of the clinic: Provided, That any clinic
entering into such written agreement is required to maintain
liability coverage of not less than one million dollars 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 occupational therapist
rendering voluntary occupational therapy services at or for the
clinic under a special volunteer occupational therapist license
authorized 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 occupational therapist license
to any occupational therapist whose occupational therapist license
is or has been subject to any disciplinary action or to any
occupational therapist who has surrendered an occupational
therapist 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 occupational therapist license, or who has elected to place an occupational therapist license in
inactive status in lieu of having a complaint initiated or other
action taken against his or her occupational therapist license, or
who has been denied an occupational therapist license.
(h) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any occupational therapist 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 occupational therapist who holds a special volunteer
occupational therapist license.
§30-28-16. 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 or permittee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists that the licensee or permittee has violated any provision of
subsection (g) of this section or rules promulgated pursuant to
this article.
(d) Upon a finding that probable cause exists that the
licensee or permittee has violated any provision of this 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 or permit or the imposition
of sanctions against the licensee or permittee. Any hearing shall
be held in accordance with the provisions of this article.
(e) Any member of the board or the executive director 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 director 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 of, impose
probationary conditions upon or take disciplinary action against,
any licensee for any of the following reasons once a violation has
been proven by a preponderance of the evidence:
(1) Obtaining a license 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 as defined by legislative rule of the board;
(4) A violation of a lawful order or legislative rule of the
board;
(5) Providing substandard care as an Occupation Therapist due
to a deliberate or negligent act or failure to act regardless of
whether actual injury to a patient is established;
(6) Providing substandard care as an Occupational Therapy
Assistant, including exceeding the authority to perform components
of intervention selected and delegated by the supervising
Occupational Therapist regardless of whether actual injury to a
patient is established;
(7) Knowingly delegating responsibilities to an individual who
does not have the knowledge, skills or abilities to perform those
responsibilities;
(8) Failing to provide appropriate supervision to an
Occupational Therapy Assistant or Aide in accordance with this
article and legislative rules of the board;
(9) Practicing as an Occupational Therapist or Occupational
Therapy Assistant when competent services to recipients may not be
provided due to the therapist's own physical or mental impairment;
(10) Having had an Occupational Therapist or Occupational
Therapy Assistant license revoked or suspended, other disciplinary
action taken, or an application for licensure refused, revoked or
suspended by the proper authorities of another jurisdiction;
(11) Engaging in sexual misconduct. For the purposes of this
subdivision, sexual misconduct includes:
(A) Engaging in or soliciting sexual relationships, whether
consensual or nonconsensual, while an Occupational Therapist or
Occupational Therapy Assistant/patient relationship exists with
that person; or
(B) Making sexual advances, requesting sexual favors or
engaging in physical contact of a sexual nature with patients or
clients;
(12) Aiding or abetting a person who is not licensed as an
Occupational Therapist or Occupational Therapy Assistant in this
state and who directly or indirectly performs activities requiring
a license;
(13) Abandoning or neglecting a patient or client under and in
need of immediate professional care without making reasonable
arrangements for the continuation of care; or
(14) Engaging in any act 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,
effective July 15, 2009, 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 permittee to report to the board for periodic interviews for a specified period of time; or
(7) Other disciplinary action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-28-17. 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, the administrative law judge shall prepare a proposed
written order at the conclusion of a hearing 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 director 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
permittee has violated any provision of this article or the board's
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.
§30-28-18. Judicial review.
Any licensee or 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.
§30-28-19. 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 or
permittee has committed a criminal offense under this article, the
board may bring the information to the attention of an appropriate
law-enforcement official.
(b) Effective July 15, 2009, a person violating a provision of
this article is guilty of a misdemeanor and, upon conviction, shall
be fined not less than $500 nor more than $1,000 or confined in
jail not more than six months, or both fined and confined.
§30-28-20. 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.
§30-28-21. Effective dates of certain provisions.
The provisions of this article as amended and reenacted during
the regular session of 2009, except for the provisions of sections
seven, sixteen and nineteen, are effective as of July 1, 2009.
The bill (Eng. Com. Sub. for H. B. No. 2309), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2335, Relating to the
federal "Yellow Ribbon G. I. Education Enhancement Program".
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2412, Providing certain
county commissions with authority to regulate the location of
businesses offering exotic entertainment.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page three, section three-jj, line twenty-three, after the
word "entertainment" by changing the period to a colon and
inserting the following proviso: Provided, That no ordinance
enacted pursuant to this section shall effect any exotic
entertainment business which is operating prior to the date this
ordinance is enacted.
The following amendments to the bill, from the Committee on
the Judiciary, were next reported by the Clerk, considered
simultaneously, and adopted:
On page four, after section three-jj, by adding the provisions
of Engrossed Senate Bill No. 251;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §7-1-3jj of the Code of West Virginia, 1931, as amended,
be amended; that said code be 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 and §13-2H-11;
and that §29-22C-27 of said code be amended and reenacted, all to
read as follows:.
The bill (Eng. Com. Sub. for H. B. No. 2412), as amended, was
then ordered to third reading.
Eng. House Bill No. 2485, Allowing pharmacy interns to vend
pseudoephedrine and other chemical precursors of methamphetamine.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
the Judiciary, were reported by the Clerk, considered
simultaneously, and adopted:
On page three, section three, after line twenty-two, by
inserting a new subdivision, designated subdivision (f), to read as
follows:
(f) "Law-enforcement agencies" means and is limited to:
(1) The State Police and its members;
(2) A county sheriff and his or her law-enforcement deputies;
(3) A police department in any municipality as defined in
section two, article one, chapter eight of this code; and
(4) A federal DEA official who is investigating the
manufacture or distribution of methamphetamine.;
And relettering the remaining subdivisions;
And,
On page twelve, section eight, after line twenty-three, by
adding a new subsection, designated subsection (d), to read as
follows:
(d) Law-enforcement agencies shall have access to the central
repository to determine those individuals who are purchasing a drug
product containing as its single active ingredient ephedrine,
pseudoephedrine or phenylpropanolamine or other designated
precursor that may be used along with other substances as a
component in the production and distribution of illegal
methamphetamine in an amount greater than the amount legally
allowed.
The bill (Eng. H. B. No. 2485), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 2528, Updating the
regulation of the practice of forestry.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §30-19-1, §30-19-2, §30-19-3, §30-19-4, §30-19-5, §30-19-
6, §30-19-7, §30-19-8, §30-19-9, §30-19-10 and §30-19-11 of the
Code of West Virginia, 1931, as amended, be amended and reenacted;
and that said code be amended by adding thereto six new sections, designated §30-19-12, §30-19-13, §30-19-14, §30-19-15, §30-19-16
and §30-19-17, all to read as follows:
ARTICLE 19. FORESTERS.
§30-19-1. Use of descriptive title restricted.
(a) No person may use in connection with his or her name or
otherwise assume, use or advertise any title or description tending
to convey the impression that he or she is a registered forester or
registered forestry technician unless he or she is certified in
accordance with this article.
(b) Nothing contained in this article shall be construed as
preventing any person, firm, partnership or corporation from
practicing forestry, managing woodlands or forests, removing any
products or planting trees on any land, in any manner desired.
§30-19-2. Applicable law.
The practice of forestry and the State Board of Registration
of Foresters are subject to article one of this chapter, this
article, and any rules promulgated hereunder.
§30-19-3. Definitions.
As used in this article, the following words and terms have
the following meanings:
(a) "Board" means the State Board of Registration of
Foresters.
(b) "Certificate" means a certificate issued to practice as a
registered forester or registered forestry technician.
(c) "Certification" means a certificate issued under the
provisions of this article
.
(d) "Certified" means a person holding a certification issued
under the provisions of this article.
(e) "Forester" means a person who has acquired specialized
forestry training by reason of his or her knowledge of the natural
sciences, mathematics, silviculture, forest protection, forest
management, forest economics and forest utilization, acquired by
professional forestry education and practical experience.
(f) "Forester-in-training" or "forestry technician-in-
training" means a person who possesses the necessary educational
qualifications as prescribed in this article for certification, but
who has not completed the experience requirements in the field of
forestry as required for certification.
(g) "Forestry" means the professional practice embracing the
science, business, and the art of creating, conserving and managing
forests and forestlands for the sustained use and enjoyment of
their resources, material or other forest produce.
(h) "Practice of forestry" means professional forestry
services, including the consultation, investigation, evaluation,
planning or responsible supervision of any forestry activities when
such professional service requires the application of forestry
principles and techniques.
(i) "Permit" means a document issued as evidence of
qualification to practice as a forester-in-training or forestry
technician-in-training under this article.
(j) "Permitee" means a person holding a permit issued under
the provisions of this article.
(k) "Registered forester" means a forester certified under
this article.
(l) "Registered forestry technician" means a forestry
technician certified under this article.
§30-19-4. State Board of Registration of Foresters.
(a) The State Board of Registration of Foresters is continued.
The members of the board in office on July 1, 2009, shall, unless
sooner removed, continue to serve until their respective terms
expire and until their successors have been appointed and
qualified.
(b) To be effective on July 1, 2009, the Governor shall
appoint, by and with the advise and consent of the Senate,
a
registered forestry technician to replace the board member whose
term ends on June 30, 2009.
(c) Commencing July 1, 2009,
the board shall consist of the
following five members:
(1) Four registered foresters; and
(2) One registered forestry technician.
(d) Each member shall be appointed by the Governor, by and
with the consent of the Senate
, from five nominees recommended by
the West Virginia Division of the Society of American Foresters.
The term is for five years.
(e) A member may not serve more than two consecutive full
terms. A member having served two consecutive full terms may not
be appointed for one year after completion of his or her second
full term. A member may continue to serve until a successor has been appointed and qualified.
(f) Each member of the board shall be a resident of West
Virginia during the appointment term.
(g) Each member must have been certified in this state for a
period of not less than three years prior to his or her appointment
and must have engaged in the practice of forestry for at least ten
years.
(h) Each member
shall maintain an active certification with
the board.
(i) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(j) A member of the board
immediately and automatically
forfeits membership to the board if his or her certification has
been suspended or revoked,
is convicted of a felony under the laws
of any jurisdiction, or becomes a nonresident of this state.
(k) The board shall elect annually one of its members as
chairperson and one member as secretary who shall serve at the will
and pleasure of the board.
(l) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(m) A majority of the members serving on the board constitutes
a quorum.
(n) The board shall hold at least two meetings annually.
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.
(o) 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.
§30-19-5. 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 a certification or permit;
(3) Establish procedures for submitting, approving and
rejecting applications for a certification or permit;
(4) Determine the qualifications of any applicant for a
certification or permit;
(5) Prepare, conduct, administer and grade written, oral or
written and oral examinations for a certificate;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examination and the pass and fail rate;
(8) Maintain an office, and hire, discharge, establish the job
requirements and fix the compensation of employees and contracted
employees necessary to enforce this article;
(9) Investigate alleged violations of this article, legislative rules, orders and final decisions of the board;
(10) Conduct disciplinary hearings of persons regulated by the
board;
(11) Determine disciplinary action and issue orders;
(12) Institute appropriate legal action for the enforcement of
this article;
(13) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(14) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(15) Establish, by legislative rule, the continuing education
requirements for certificate holders and permittees; and
(16) Propose rules in accordance with article three, chapter
twenty-nine-a of this code to implement this article.
(c) The board may:
(1) Contract with third parties to administer the examinations
required under this article;
(2) Define, by legislative rule, the fees charged under this
article;
(3) Issue, renew, deny, suspend, revoke or reinstate a
certification or permit;
(4) Sue and be sued in its official name as an agency of this
state;
(5) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions; and
(6) Take all other actions proper to effectuate the purposes of this article.
§30-19-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in
accordance with article three, chapter twenty-nine-a of this code,
to implement this article, including:
(1) Standards and requirements for a certification and permit;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or
administer examinations and reexaminations;
(4) Educational and experience requirements, and the passing
grade on the examination;
(5) Standards for ethical conduct;
(6) Procedures for the issuance and renewal of a certification
and permit;
(7) A fee schedule;
(8) Continuing education requirements for a certificate holder
and permittee;
(9) Procedures for denying, suspending, revoking, reinstating
or limiting the practice of a certificate holder or permittee;
(10) Requirements for inactive or revoked certificate and
permit; and
(11) Any other rules necessary to effectuate the provisions of
this article.
(b) All of the board's rules in effect on the effective date
of this article shall remain in effect until amended or repealed,
and references to former enactments of this act are interpreted to mean this article.
§30-19-7. 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
Foresters Fund", which fund is continued. The fund shall be used
by the board for the administration of this article. Except as
provided in article one of this chapter, the board shall retain the
amounts 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 amounts received as administrative fines imposed
pursuant to this article shall be deposited into the General
Revenue Fund of the State Treasury.
§30-19-8. General requirements to be certified as a registered
forester.
(a) To be eligible to be certified as a registered forester,
the applicant must:
(1) Be of good moral character;
(2) Have a high school diploma or its equivalent;
(3) Have obtained either:
(A) Completion of a four-year degree program or masters degree
program in professional forestry, accredited by the Society of
American Foresters and have two years related experience in the
field of forestry; or
(B) Completion of a two-year technical forestry program in a program accredited or recognized by the Society of American
Foresters, completion of a bachelor's degree in a field used in the
practice of forestry as approved by the board and four years
related experience in the field of forestry;
(4) Successfully pass an examination approved by the board.
(b) Those persons licensed by the board as a forester as of
the effective date of this section are not required to take the
examination.
§30-19-9. General requirements to be registered forestry
technician.
To be eligible to be certified as a registered forestry
technician, the applicant must:
(1) Be of good moral character;
(2) Have a high school diploma or its equivalent;
(3) Graduate from a two-year technical forestry program
accredited or recognized by the Society of American Foresters;
(4) Complete four years of related experience in the field of
forestry.
§30-19-10. Qualifications for permit as a forester-in-training or
a forestry technician-in-training.
(a) The board may issue a permit to practice as a forester-
in-training or a forestry technician-in-training to an applicant
who meets all the requirements for certification, except the
experience requirements of paragraph (A) or (B), subdivision three,
subsection (a), section eight or subdivision four, section nine.
(b) A permit to practice as a forester-in-training or forestry technician-in-training may be renewed annually for a period not to
exceed five years. The board may extend the five year limitation
if the board finds the applicant experienced an undue hardship
which prevented the attainment of the required experience.
§30-19-11. License from another state.
The board may issue a certification to a person as a
registered forester in this state, without requiring an
examination, to an applicant from another jurisdiction who:
(1) Is not a resident of this state;
(2) Is of good moral character;
(3) Holds a valid forestry license or other authorization to
practice forestry in another jurisdiction which meets requirements
that are substantially equivalent to the certification requirements
set forth in this article;
(4) Is not currently being investigated by a disciplinary
authority of this state or another jurisdiction, does not have
charges pending against his or her authorization, and has never had
his or her authorization revoked;
(5) Has not previously failed an examination for certification
in this state;
(6) Has paid all the applicable fees; and
(7) Has completed such other action as required by the board.
§30-19-12. Renewal requirements.
(a) All persons regulated under the provisions of this article
shall annually before January 1, renew his or her certification or
permit by completing a form prescribed by the board and submit any other information required by the board.
(b) At least thirty days prior to July 1 of each year, the
board shall mail to every person regulated under the provisions of
this article an application for renewal.
(c) The board shall charge a fee for each renewal of a
certification or permit and may charge a late fee for any renewal
not paid in a timely manner.
(d) The board shall require as a condition for the renewal of
a certification or permit that each person regulated under the
provisions of this article 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 certification or permit.
§30-19-13. 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 certificate holder or
permittee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the certificate holder or 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
certificate holder or 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 certification or permit or the
imposition of sanctions against the certificate holder or
permittee. Any hearing shall be held in accordance with the
provisions of this article.
(e) Any member of the board or the executive director 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 director 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 certification or
permit of, impose probationary conditions upon or take disciplinary
action against, any certificate holder or permittee for any of the
following reasons once a violation has been proven by a
preponderance of the evidence:
(1) Obtaining a certification 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 as defined by legislative rule of the board;
(4) Violating this article or lawful order or rule of the
board;
(5) Having had a certificate or permit revoked or suspended,
other disciplinary action taken, or an application for
certification or permit or other authorization refused, revoked or
suspended by the proper authorities of another jurisdiction; or
(6) Engaging in any act 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) 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 certificate holder or permitee 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.
§30-19-14. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by 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 director 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 certificate
holder or permittee has violated this article or the board's 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.
§30-19-15. Judicial review; appeal to Supreme Court of Appeals.
Any certificate holder or 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.
§30-19-16. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a certificate
holder or permitee has committed a criminal offense under this
article, the board may bring the information to the attention of an
appropriate law-enforcement official.
(b) Effective July 15, 2009, a person violating a provision of
this article is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $500 nor more than $1,000 or
confined in jail not more than six months, or both fined and
confined.
§30-19-17. 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.
The bill (Eng. Com. Sub. for H. B. No. 2528), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2531, Updating the
regulation of the practice of barbers and cosmetologists.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.
§30-27-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to
practice barbering, barber permanent waving, cosmetology,
aesthetics or nail care 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 the person is
a licensed aesthetician, barber, barber crossover, barber permanent
wavist, cosmetologist, cosmetologist crossover or nail technician,
unless the person has been licensed under the provisions of this
article, and the license has not expired, been suspended or
revoked.
(b) No salon, except through a licensee, may render any
service or engage in any activity which if rendered or engaged in
by an individual, would constitute the practices licensed under the
provisions of this article.
(c) No school, except through a licensee, may instruct, render
any service or engage in any activity which if taught, rendered or
engaged in by an individual, would constitute the practices
licensed under the provisions of this article.
§30-27-2. Applicable law.
The practices licensed under the provisions of this article
and the Board of Barbers and Cosmetologists are subject to the
provisions of article one of this chapter, the provisions of this
article, and any rules promulgated hereunder.
§30-27-3. Definitions.
As used in this article, the following words and terms have the following meanings, unless the context clearly indicates
otherwise:
(a) "Aesthetics" or "esthetics" means any one or any
combination of the following acts when done on the human body for
compensation and not for the treatment of disease:
(1) Administering cosmetic treatments to enhance or improve
the appearance of the skin, including cleansing, toning, performing
effleurage or other related movements, stimulating, exfoliating or
performing any other similar procedure on the skin of the human
body or scalp;
(2) Applying, by hand or with a mechanical or electrical
apparatus, any cosmetics, makeups, oils, powders, clays,
antiseptics, tonics, lotions, creams or chemical preparations
necessary for the practice of aesthetics to another person's face,
neck, back, shoulders, hands, elbows and feet up to and including
the knee;
(3) The rubbing, cleansing, exercising, beautifying or
grooming of another person's face, neck, back, shoulders, hands,
elbows and feet up to and including the knee;
(4) The waxing, tweezing and threading of hair on another
person's body;
(5) The wrapping of another person's body in a body wrap;
(6) Applying artificial eyelashes and eyebrows; and
(7) The lightening of hair on the body except the scalp.
(b) "Aesthetician" or "esthetician" means a person licensed
under the provisions of this article who engages in the practice of aesthetics.
(c) "Applicant" means a person making application for a
professional license, license, certificate, registration, permit or
renewal under the provisions of this article.
(d) "Barber" means a person licensed under the provisions of
this article who engages in the practice of barbering.
(e) "Barbering" means any one or any combination of the
following acts when done on the human body for compensation and not
for the treatment of disease:
(1) Shaving, shaping and/or trimming the beard;
(2) Cutting, singeing, shampooing, arranging, dressing,
tinting, bleaching, or applying lotions or tonics on human hair, or
a wig or hairpiece; and
(3) Applications, treatments or rubs of the scalp, face, or
neck with oils, creams, lotions, cosmetics, antiseptics, powders,
or other preparations in connection with the shaving, cutting or
trimming of the hair or beard.
(f) "Barber crossover" or "cosmetologist crossover" is a
person who is licensed to perform barbering and cosmetology.
(g) "Barber permanent waving" means the following acts done on
the human body for compensation and not for the treatment of
disease:
(1) The bleaching or tinting of hair; and
(2) The permanent waving of hair.
(h) "Barber permanent wavist" means a person licensed to
perform barbering and barber permanent waving.
(i) "Board" means the West Virginia Board of Barbers and
Cosmetologists.
(j) "Certificate" means an instructor certificate to teach in
a school under the provisions of this article.
(k) "Certificate holder" means a person certified as an
instructor to teach in a school under the provisions of this
article.
(l) "Cosmetologist" means a person licensed under the
provisions of this article who engages in the practice of
cosmetology.
(m) "Cosmetology" means any one or any combination of the
following acts when done on the human body for compensation and not
for the treatment of disease:
(1) Cutting, styling, shaping, arranging, braiding, weaving,
dressing, adding extensions, curling, waving, permanent waving,
relaxing, straightening, shampooing, cleansing, singeing,
bleaching, tinting, coloring, waxing, tweezing, or similarly work
on human hair, or a wig or hairpiece, by any means, including
hands, mechanical or electrical devices or appliances;
(2) Nail care;
(3) Applying by hand or with a mechanical or electrical device
or appliance, any cosmetics, makeups, oils, powders, clays,
antiseptics, tonics, lotions, creams or chemical preparations
necessary for the practice of aesthetics to another person's face,
neck, shoulders, hands, elbows and feet up to and including the
knee;
(4) The rubbing, cleansing, exercising, beautifying or
grooming of another person's face, neck, shoulders, hands, elbows
and feet up to and including the knee;
(5) The wrapping of another person's body in a body wrap; and
(6) Performing aesthetics.
(n) "General supervision" means:
(1) For schools, a master or certified instructor is on the
premises and is quickly and easily available; or
(2) For salons, a professional licensee is on the premises and
is quickly and easily available.
(o) "Hair braiding" means any one or any combination of the
following acts when done on the human body for compensation and not
for the treatment of disease: Braiding, plaiting, twisting,
wrapping, threading, weaving, extending or locking of natural human
hair by hand or mechanical device.
(p) "License" means a professional license, a salon license or
a school license.
(q) "Licensee" means a person, corporation or firm holding a
license issued under the provisions of this article.
(r) "Nail care" means any one or any combination of the
following acts when done on the human body for compensation and not
for the treatment of disease:
(1) The cleansing, dressing, or polishing of nails of a person
(2) Performing artificial nail service; and
(3) The cosmetic treatment of the feet up to the knee and the
hands up to the elbow.
(s) "Nail technician" or "manicurist" means a person licensed
under the provisions of this article who engages in the practice of
nail care.
(t) "Permit" means a work permit.
(u) "Permitee" means a person holding a work permit.
(v) "Professional license" means a license to practice as a
aesthetician, barber, barber crossover, barber permanent wavist,
cosmetologist, cosmetologist crossover or nail technician.
(w) "Registration" means a registration issued by the board to
a person who rents or leases a booth or chair from a licensed salon
owner and/or operator or a registration issued by the board to a
person who is a student in a school.
(x) "Registrant" means a person who holds a registration under
the provisions of this article.
(y) "Salon" means a shop or other facility where a person
practices under a professional license.
(z) "Salon license" means a license to own and operate a
salon.
(aa) "School" means a facility to educate persons to be
licensed with professional licenses under the provisions of this
article.
(bb) "School license" means a license to own and operate a
school.
(cc) "Student registration" means a registration issued by the
board to a student to study at a school licensed under the
provisions of this article.
§30-27-4. Board of Barbers and Cosmetologists.
(a) The West Virginia Board of Barbers and Cosmetologists is
continued. The members of the board in office on July 1, 2009,
shall, unless sooner removed, continue to serve until their
respective terms expire and until their successors have been
appointed and qualified.
(b) To be effective on July 1, 2009, the Governor shall
appoint, by and with the advice and consent of the Senate:
(1) One person who is a licensed cosmetologist for a term of
five years;
(2) One person who is a licensed barber for a term of five
years;
(3) One person who is a licensed barber crossover or a
licensed barber permanent wavist for a term of four years;
(4) One person who is a licensed aesthetician for a term of
four years;
(5) One person who is a licensed nail technician for a term of
four years;
(6) One person who is a licensed cosmetologist for a term of
three years; and
(7) One citizen member, who is not licensed under the
provisions of this article and who does not perform any services
related to the practice of the professions regulated under the
provisions of this article, for a term of three years.
(c) After the initial appointment term, the term shall be for
five years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.
(d) Commencing July 1, 2009, the board shall consist of the
following seven members:
(1) Two licensed cosmetologists;
(2) One licensed barber;
(3) One licensed barber crossover or licensed barber permanent
wavist;
(4) One licensed aesthetician;
(5) One licensed nail technician; and
(6) One citizen member.
(e) 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.
(f) Each member of the board must be a resident of this state
during the appointment term.
(g) 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. A member serving on the board on June
30, 2009, may be reappointed in accordance with the provisions of
this section.
(h) 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.
(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(j) 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.
(k) The board shall elect annually one of its members as
chairperson who serves at the will of the board.
(l) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(m) A majority of the members of the board constitutes a
quorum.
(n) The board shall hold at least two annual meetings. Other
meetings may be held at the call of the chairperson or upon the
written request of two members, at the time and place as designated
in the call or request.
(o) 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 IV of the Constitution of this state.
§30-27-5. 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, permits, certificates
and registrations;
(3) Establish procedures for submitting, approving and
rejecting applications for licenses, permits, certificates and
registrations;
(4) Determine the qualifications of any applicant for
licenses, permits, certificates and registrations;
(5) Prepare, conduct, administer and grade examinations for
professional licenses and certificates;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third
party administers, 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 director;
(9) Maintain an office, and hire, discharge, establish the job
requirements and fix the compensation of employees,
investigators/inspectors and contracted employees necessary to
enforce the provisions of this article: Provided, That any
investigator/inspector employed by the board on July 1, 2009, shall
retain their coverage under the classified service, including job
classification, job tenure and salary, until that person retires or
is dismissed: Provided however, That nothing may prohibit the
disciplining or dismissal of any investigator/inspector for cause;
(10) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the board;
(11) Establish the criteria for the training of
investigators/inspectors;
(12) Set the requirements for investigations and inspections;
(13) Conduct disciplinary hearings of persons regulated by the
board;
(14) Determine disciplinary action and issue orders;
(15) Institute appropriate legal action for the enforcement of
the provisions of this article;
(16) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(17) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(18) Establish the continuing education requirements for
professional licensees and certificate holders;
(19) Issue, renew, combine, deny, suspend, revoke or reinstate
licenses, permits, certificates and registrations;
(20) Establish a fee schedule;
(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.
(c) The board may:
(1) Establish joint licenses;
(2) Contract with third parties to administer the examinations required under the provisions of this article;
(3) Sue and be sued in its official name as an agency of this
state; and,
(4) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions.
§30-27-6. 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, permits,
certificates and registrations;
(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,
permits, certificates and registrations;
(8) A fee schedule;
(9) Continuing education requirements for professional
licensees and certificate holders;
(10) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of licensees, permitees,
certificate holders and registrants;
(11) Designating the regions for investigators/inspectors;
(12) Criteria for the training of investigators/inspectors;
(13) Requirements for investigations and inspections;
(14) Requirements for inactive or revoked licenses, permits,
certificates and registrations;
(15) Establishing the training program and requirements for
instructors for schools licensed under this article;
(16) Establishing operating procedures for salons; and
(17) Any other rules necessary to effectuate the provisions of
this article.
(b) All of the board's rules in effect on July 1, 2009, 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 is authorized to file an emergency rule for the
implementation of its fee schedule in 2009.
§30-27-7. Fees; special revenue account; administrative fines.
(a) All fees in effect on January 1, 2009, shall remain in
effect until they are amended or repealed by legislative rule or
statute.
(b) 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 "Barbers and
Beauticians Special Fund", which is continued and shall be known as
the "Board of Barbers and Cosmetologists Special Fund". 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.
(c) Any amount received as fines, imposed pursuant to this
article, shall be deposited into the General Revenue Fund of the
State Treasury.
§30-27-8. Professional license requirements
.
(a) An applicant for a professional license to practice as a
aesthetician, barber, barber crossover, barber permanent wavist,
cosmetologist, cosmetologist crossover or nail technician shall
present satisfactory evidence that he or she:
(1) Is at least eighteen years of age;
(2) Is of good moral character;
(3) Has a high school diploma, a GED, or has passed the
"ability to benefit test" approved by the United States Department
of Education;
(4) Has graduated from a school which has been approved by the
board;
(5) Has passed an examination that tests the applicant's
knowledge of subjects specified by the board: Provided, That the
board may recognize a certificate or similar license in lieu of the
examination or part of the examination that the board requires;
(6) Has paid the applicable fee;
(7) Presents a certificate of health from a licensed
physician;
(8) Is a citizen of the United States or is eligible for
employment in the United States; and
(9) Has fulfilled any other requirement specified by the
board.
(b) A license to practice issued by the board prior to July 1,
2009, shall for all purposes be considered a professional license
issued under this article: Provided, That a person holding a
license issued prior to July 1, 2009, must renew the license
pursuant to the provisions of this article.
§30-27-9. Professional license from another state; license to
practice in this state.
(a) The board may issue a professional license to practice to
an applicant of good moral character who holds a valid license or
other authorization to practice in that particular field from
another state, if the applicant demonstrates that he or she:
(1) Holds a license or other authorization to practice in
another state which was granted after completion of educational
requirements substantially equivalent to those required in this
state and passed an examination that is substantially equivalent to
the examination 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) Is a citizen of the United States or is eligible for
employment in the United States;
(6) Has presented a certificate of health issued by a licensed
physician; and
(7) Has fulfilled any other requirement specified by the
board.
(b) In its discretion, the board may examine a person by a
written, oral or skills test for licensing under this section, and
may enter into agreements for reciprocal licensing with other
jurisdictions having substantially similar requirements for
licensure.
(c) The provisions of this section do not apply to nail
technicians or manicurists from another state or jurisdiction. A
nail technician or manicurist from another state or jurisdiction is
required to show that he or she has completed the required
curriculum and has successfully passed the board's practical skills
examination to apply for licensure under the provisions of this
article.
§30-27-10. Professional license and certificate renewal
requirements.
(a) A professional licensee and certificate holder shall
annually or biennially on or before January 1, renew his or her
professional license or certificate 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 each renewal of a license or certificate, 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
professional license or certificate that each licensee or
certificate holder 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 or certificate.
§30-27-11. Work permit.
(a) The board may issue a work permit to practice to an
applicant who:
(1) Has graduated from a school approved by the board or has
completed the course requirements in a specific field;
(2) Is waiting to take the examination;
(3) Has employment in the field in which he or she applied to
take the examination and is working under the general supervision
of a professional licensee;
(4) Has paid the work permit fee;
(5) Has presented a certificate of health issued by a licensed
physician;
(6) Is a citizen of the United States or is eligible for
employment in the United States; and
(7) Meets all the other requirements specified by the board.
(b) A work permit expires at the end of the month after
issuance following the next examination in the specific field. A
work permit may be renewed once.
(c) While in effect, a work permitee is subject to the
restrictions and requirements imposed by this article.
§30-27-12. Student registration.
(a) Prior to commencing studies in a school licensed under the
provisions of this article, a student shall acquire a student
registration issued by the board.
(b) An applicant for a student registration shall present
satisfactory evidence that he or she:
(1) Is a student in an approved school or enrolled in an
approved course;
(2) Is of good moral character;
(3) Has paid the required fee;
(4) Has presented a certificate of health issued by a licensed
physician; and
(5) Is a citizen of the United States or is eligible for
employment in the United States.
(c) The student registration is good during the prescribed
period of study for the student.
(d) The student may perform acts constituting barbering,
barber permanent waving, cosmetology, aesthetics or nail care in a
school under the general supervision of a master or certified
instructor.
§30-27-13. Display of professional license and permits.
(a) The board shall prescribe the form for a professional
license and work and student permits, including a photograph, and
may issue a duplicate license or permit, upon payment of a fee.
(b) Every professional licensee and work permitee shall
display his or her license or permit in a conspicuous place at his
or her work station.
(c) Every student shall have available his or her student
permit and be able to produce it upon request.
(d) Every professional licensee, work permitee or student must
present such license, permit or registration to an
investigator/inspector or a board member upon request.
§30-27-14. Health certificate requirements.
(a) It is unlawful for a person to practice as a professional
licensee, be a permitee or be a certified instructor while having
an infectious, contagious or communicable disease.
(b) The board may, with cause, require a professional
licensee, permitee or certified instructor to submit to a physical
examination and file a certificate of health.
§30-27-15. School license requirements.
(a) Any person, firm or corporation, whether public or
private, and whether organized for profit or not, must have a
school license issued by the board to own and/or operate a school.
(b) The board may issue a school license to own and/or operate
a school, if the applicant meets the following requirements:
(1) A completed application in writing on forms prescribed by
the board, which forms have been signed and verified by the
applicant;
(2) Is professionally competent and financially responsible;
(3) Posts a bond in an amount specified by the board;
(4) There is proof that adequate physical facilities will be
available for the school;
(5) The proposed school has been inspected by an
investigator/inspector to determine whether it is properly fitted
and equipped for instruction in the specific fields to be offered;
(6) That persons teaching or instructing at the school are
certified by the board as fully qualified instructors; and
(7) Has paid the appropriate fees.
(c) If an applicant desires to own and/or operate more than
one school, a separate application shall be made and a separate
school license shall be issued for each school.
(d) The board may suspend, revoke or refuse to renew the
school license of any school failing to meet the minimum standards
and qualifications required for the issuance of an original school
license, as set out in this section.
(e) All school licenses must be renewed annually or biennially
on or before January 1 and pay a renewal fee.
(f) A license to operate a school issued by the board prior to
January 1, 2009, shall for all purposes be considered a school
license issued under this article: Provided, That a person holding
a school license issued prior to January 1, 2009, must renew the
license pursuant to the provisions of this article.
(g) The school license shall be permanently displayed in the
school, and a suitable sign shall be displayed at the main entrance
of the school plainly indicating what type of school is being
operated.
§30-27-16. Certification requirements to be an instructor in a
school.
(a) The board may issue a certificate to be an instructor in
a school to an applicant who meets the following requirements:
(1) Meets the educational requirements established by the
board;
(2) Has completed the required instructor's training;
(3) Has passed the instructor examination;
(4) Has paid the appropriate fees;
(5) Presents a certificate of health from a licensed
physician;
(6) Is a citizen of the United States or is eligible for
employment in the United States; and
(7) Has fulfilled any other requirement specified by the
board.
(b) All instructor certifications must be renewed annually or
biennially on or before January 1, and pay a renewal fee.
(c) A certification to be an instructor issued by the board
prior to January 1, 2009, shall for all purposes be considered a
certification issued under this article: Provided, That a person
holding a certification issued prior to January 1, 2009, must renew
the certification pursuant to the provisions of this article.
(d) An instructor with an expired certificate must comply with
the following to renew his or her certificate:
(1) Notify the board that he or she wants to be placed on
inactive status; or
(2) Pay all lapsed renewal fees;
(3) Present a new certificate of health; and
(4) Meet the qualifications for certification set out in this
article.
(e) A certified instructor is not required to have an active
professional license, unless the instructor is in fact practicing
outside the scope of his or her employment as an instructor.
§30-27-17. Salon license requirements.
(a) Prior to opening a salon, any person, firm or corporation
owning and/or operating a salon, and any person, firm or
corporation practicing in a field authorized by this article, shall
meet the following requirements to acquire a salon license to do
business:
(1) The salon has been approved by the board as having met all
the requirements and qualifications for the place of business as
are required by this article;
(2) Notify the board, in writing, at least twenty days before
the proposed opening date, so there can be an inspection of the
salon: Provided, That if an inspection is not made within ten days
of the opening of the salon, or a salon license to open has not
been granted or refused, then the salon may open provisionally
subject to a later inspection and to all other provisions and rules
provided for in this article;
(3) Pay all
applicable
fees;
(4) All rooms, facilities, bathrooms, toilets and adjoining
rooms used in the place of business are kept clean, sanitary, well lighted and ventilated at all times. The use of chunk alum, powder
puffs and styptic pencils in any shop is prohibited;
(5) Every professional licensee or permitee in the place of
business thoroughly cleans his or her hands with soap and water
immediately before serving any patron; and
(6) Every patron is served with clean, freshly laundered linen
that is kept in a closed cabinet used for that purpose only. All
linens, immediately after being used, must be placed in a
receptacle used for that purpose only.
(b) All rules shall be kept posted in a conspicuous place in
each place of business.
(c) All salon licenses must be renewed annually or biennially
on or before July 1 and pay a renewal fee.
(d) A license to operate a salon issued by the board prior to
July 1, 2009, shall for all purposes be considered a salon license
issued under this article: Provided, That a person holding a
license issued prior to July 1, 2009, must renew the license
pursuant to the provisions of this article.
(e) The salon license shall be permanently displayed in the
salon, and a suitable sign shall be displayed at the main entrance
of the salon which shall plainly indicate what type of salon is
being operated.
§30-27-18. Salon management requirements.
(a) Every salon in this state offering the services set forth
in this article shall be operated under the supervision and
management of a professional licensee licensed under this article.
(b) Any services set forth in this article may be conducted
within the same salon. A suitable sign shall be displayed at the
main entrance of all salons plainly indicating the business
conducted therein.
§30-27-19. Booth or chair rental registration requirements.
(a) Any professional licensee who elects to rent or lease a
booth or chair from a licensed salon owner and/or operator must
comply with the following to receive a registration from the board:
(1) Register with the board;
(2) Register with the State Tax Division and present the
registration to the board;
(3) Pay a registration fee;
(4) Notify the board of the length of any rental or lease
agreement;
(5) State the name of the person or salon from which a chair
or booth is being rented or leased; and
(6) State the effective date of the rental or lease.
(b) If a person registered with the board pursuant to this
section elects to move from one salon to rent or lease a chair or
booth from another salon, then he or she must register again with
the board and pay a fee.
(c) Each licensed salon owner and/or operator who elects to
rent or lease chairs or booths shall notify the board in writing of
such rental or lease within ten days of the effective date of the
rental or lease.
(d) The board shall quarterly notify the State Tax Commissioner of all persons registered pursuant to this section
during the previous quarter. Such notice shall be in writing and
shall include the following:
(1) The names of all the registered professional licensees;
(2) The names of the salons where space is being rented or
leased; and
(3) The length of time of each rental or lease agreement.
(e) All registrations must be renewed annually or biennially
on or before July 1 and pay a renewal fee.
(f) A registration to rent or lease a booth or chair issued by
the board prior to July 1, 2009, shall for all purposes be
considered a registration issued under this article: Provided,
That a person holding a registration to rent or lease a booth or
chair issued prior to July 1, 2009, must renew the registration
pursuant to the provisions of this article.
§30-27-20. 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, permittee,
registrant or certificate holder.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists
that the licensee, permittee, registrant or certificate holder 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, permittee, registrant or certificate holder 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, permit,
registration or certification or the imposition of sanctions
against the licensee, permittee, registrant 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 director 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 director 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, permit,
registration or certification of, impose probationary conditions
upon or take disciplinary action against, any licensee, permittee,
registrant 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, permit, registration or certification
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, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative
rule of the board;
(5) Having had a license or other authorization revoked or
suspended, other disciplinary action taken, or an application for
licensure or other authorization revoked or suspended 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,
effective July 15, 2009, 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, permittee, registrant or certificate holder 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.
§30-27-21. 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 director 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,
permittee, registrant or certificate holder has violated subsection
(g) of this section or the board's 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.
§30-27-22. Judicial review.
Any licensee, permittee, registrant 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.
§30-27-23. 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,
permitee, registrant or certificate holder has committed a criminal
offense under this article, the board may bring its information to
the attention of an appropriate law-enforcement official.
(b) Effective July 15, 2009, a person violating a provision of
this article is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $500 nor more than $1,000 or
confined in jail not more than six months, or both fined and
confined.
§30-27-24. 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.
The bill (Eng. Com. Sub. for H. B. No. 2531), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2566, Expanding
applicability of increased penalties for crimes against certain protected persons.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2690, Updating language
pertaining to indemnity for the death of diseased or infected
animals.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2701, Relating to an escape
of any person from the custody of the Division of Juvenile
Services.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §61-5-12b, to read as
follows:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-12b. Escape from custody of the Director of Juvenile
Services; penalty venue.
(a) Any person in the custody of the director of Division of
Juvenile Services, regardless of where he or she confined or
detained, shall be guilty of a misdemeanor, and upon conviction, shall be confined in jail, or in the case of a person in juvenile
facility, for not more than one year.
(b) Venue for the prosecution of a violation of this section
shall be in the county in which the escape occurs: Provided, That
if the person is under the age of eighteen, upon agreement of all
parties, the prosecution of the escape may be transferred to the
circuit court from which the juvenile was originally committed.
The bill (Eng. Com. Sub. for H. B. No. 2701), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2723, Authorizing liens by
municipalities and requiring administrative procedures for the
assessment and collection of delinquent municipal fees.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Government Organization, were reported by the Clerk, considered
simultaneously, and adopted:
O
n page three, section thirteen, lines twenty-five through
twenty-nine, by striking out the words "A municipality has
authority to enact an ordinance permitting it to file a lien
pursuant to this section for unpaid fire, police or street fees on
real property located within the municipal corporate limits as to
which such fees are delinquent." and inserting in lieu thereof the
following: A municipality has authority to enact an ordinance,
pursuant to this section, permitting it to file a lien on real
property located within the municipal corporate limits for unpaid and delinquent fire, police or street fees.;
On page five, section thirteen, line sixty-one, by striking
out "(d)" and inserting in lieu thereof "(e)";
And,
On page five, section thirteen, line sixty-one, after the word
"section" by striking out the comma and the words "for the
publication of the ordinance after it is adopted or substantially
amended".
The bill (Eng. Com. Sub. for H. B. No. 2723), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2788, Protecting
incapacitated adults from abuse or neglect by a caregiver.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Kessler, unanimous consent being
granted, the bill was advanced to third reading with the unreported
Judiciary committee amendment pending and the right for further
amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2832, Relating to critical
skills evaluations for students in grades three and eight.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-10. Critical skills instructional support programs for
third and eighth graders.
(a) The Legislature finds that:
(1) In the early childhood through intermediate grade levels,
ensuring that each student masters the content and skills needed
for mastery at the next higher grade level is critically important
for student success;
(2) Students who do not demonstrate grade-level mastery in
reading, language arts and mathematics become increasingly less
likely to succeed at each successively higher grade level;
(3) State board policy requires every school to establish a
student assistance team that reviews student academic needs that
have persisted despite being addressed by instruction and
intervention and requires schools to implement in an equitable
manner programs during and after the instructional day at the
appropriate instructional levels that contribute to the success of
students; and
(4) Grades three and eight are critical transition points for
additional intervention strategies that reinforce the preparation
of students who are not prepared fully for success at the next
grade level.
(b) The state board shall, in accordance with the provisions
of article three-b, chapter twenty-nine-a of this code, promulgate
legislative rules as necessary to effectuate the provisions of this
section on or before November 1, 2009. The rules shall become effective July 1, 2010, and shall provide for at least the
following:
(1) Encouraging and assisting county boards in establishing
and operating critical skills instructional support programs during
and after the instructional day and during the summer for students
in grades three and eight who in the judgment of the student
assistance team are not mastering the content and skills in
reading, language arts and mathematics adequately for success at
the next grade level and who are recommended by the student
assistance team for additional academic help through the programs;
(2) Maximizing parental involvement in supporting the critical
skills development of their children in reading, language arts and
mathematics through critical skills instructional support programs;
(3) Ensuring the employment of qualified teachers and support
personnel to provide instruction to students enrolled in critical
skills instructional support programs;
(4) Creating a formula or grant-based program for the
distribution of funds appropriated specifically for the purposes of
this section or otherwise available for the support of in-school,
after-school and summer critical skills instructional support
programs;
(5) Providing transportation and healthy foods for students
required to attend after-school and summer critical skills
instructional support programs or supervision at the school that
accommodates the typical work schedules of parents; and
(6) Receiving from county boards any applications and annual reports required by rule of the state board.
(c) Effective July 1, 2010, a student in grades three or eight
who is recommended by the student assistance team for additional
academic help in one or more of the subjects of reading, language
arts and mathematics through a critical skills instructional
support program may be required to attend a summer critical skills
instructional support program as a condition for promotion if:
(1) The student has been provided additional academic help
through an in-school or after-school critical instructional support
program and, prior to the end of the school year, the student
assistance team recommends that further additional academic help is
needed for the student to be successful at the next grade level;
and
(2) Adequate funding is provided by the State Board for the
administration and operation of the program;
(d) Effective July 1, 2010, county boards shall provide
suitable educational facilities, equipment and services to support
critical skills instructional support programs established pursuant
to this section. Summer programs may be provided at a central
location for third and eighth graders who qualify for the program.
(e) Nothing prohibits the grade level retention of a student
based upon the sole judgement of the teacher of the students
mastery of the subject matter and preparation for the subject
matter at the next higher grade level.
(f) Nothing in this section may be construed to affect the
individualized education plans of exceptional students.
(g) Beginning July 1, 2009:
(1) Each county board shall prepare to implement the
provisions of this section and the provisions of the state board
rule required by subsection (b) of this section. The preparations
shall at least include planning, ensuring the student assistance
teams are established as currently required by state board policy
and performing a needs assessment; and
(2) With the needs assessment performed by each county board
and other necessary information, the state board shall determine an
accurate cost for fully implementing the provisions of this
section. The state board also shall determine the amount of funds
available from sources other than Legislative appropriation.
(h) County boards are encouraged to establish and operate
critical skills instructional support programs during the summer of
2010.
The bill (Eng. Com. Sub. for H. B. No. 2832), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2870, Extending the deadline
of the buyback provision provided under the Teachers' Defined
Contribution Retirement System to the State Teachers Retirement
System.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Foster, and by unanimous consent,
the bill was advanced to third reading with the right for
amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2916, Relating to the
Emergency Medical Services Act.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2926, Establishing a
procedure for challenging a candidate's qualifications for elected
office.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §3-5-4 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and to amend said code by adding thereto two
new sections, designated §7-1-1b and §7-1-15, all to read as
follows:
CHAPTER 3. ELECTIONS.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-4. Nomination of candidates in primary elections.
(a) At each primary election, the candidate or candidates of
each political party for all offices to be filled at the ensuing
general election by the voters of the entire state, of each
congressional district, of each state senatorial district, of each
delegate district, of each judicial circuit of West Virginia, of
each county, and of each magisterial district in the state shall be nominated by the voters of the different political parties, except
that no presidential elector shall be nominated at a primary
election.
(b) In primary elections a plurality of the votes cast shall
be sufficient for the nomination of candidates for office. Where
only one candidate of a political party for any office in a
political division, including party committeemen and delegates to
national conventions, is to be chosen, or where a judicial circuit
has two or more circuit judges and one circuit judge is to be
chosen for each numbered division within the circuit, the candidate
receiving the highest number of votes therefor in the primary
election shall be declared the party nominee for such office.
Where two or more such candidates are to be chosen in the primary
election, the candidates constituting the proper number to be so
chosen who shall receive the highest number of votes cast in the
political division in which they are candidates shall be declared
the party nominees and choices for such offices, except that:
(1) Candidates for the office of commissioner of the county
commission shall be nominated and elected in accordance with the
provisions of section ten, article nine of the Constitution of the
state of West Virginia
and the requirements of section one-b,
article one, chapter seven;
(2) Members of county boards of education shall be elected at
primary elections in accordance with the provisions of sections
five and six of this article;
(3) Candidates for the House of Delegates shall be nominated and elected in accordance with the residence restrictions provided
in section two, article two, chapter one of this code; and
(4) In judicial circuits having numbered divisions, each
numbered division shall be tallied separately and the candidate in
each division receiving a plurality of the votes cast shall be
declared the party nominee for the office in that numbered
division.
(c) In case of tie votes between candidates for party
nominations or elections in primary elections, the choice of the
political party shall be determined by the executive committee of
the party for the political division in which such persons are
candidates.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-1b. Legislative findings; qualifications for county
commissioners.
(a) The Legislature finds that:
(1) There is confusion concerning when a candidate for county
commission must be a resident of the magisterial district he or she
wants to represent;
(2) The supreme court has discussed the residency requirement
in several cases and has conflicting interpretations;
(3) It is imperative that this issue be permanently resolved
at the time of filing to ensure the citizens have choice on the
ballot;
(4) It is essential the citizens know they are voting for a person who is qualified to be a candidate; and
(5) With the expense of holding an election, tax payer moneys
should not be wasted of officials who could never serve.
(b) A candidate for the office of county commissioner shall be
a resident from the magisterial district for which he or she is
seeking election:
(1) By the last day to file a certificate of announcement
pursuant to section seven, article five, chapter three of this
code; or
(2) At the time of his or her appointment by the county
executive committee or the chairperson of the county executive
committee.
§7-1-15. Challenge of candidate for county commission; residency.
(a) (1) Any person desiring to contest the qualifications of
another person whose nomination in the primary election, nomination
by petition, or nomination by appointment to fill a vacancy on the
ballot, has been certified and filed pursuant to article five of
this chapter as a candidate for the office of county commission at
a general election, shall file a verified petition specifically
setting forth the grounds of the challenge not later than thirty
days after the date of the primary election.
(2) The court may permit a petition to be filed after the
thirtieth day after the primary election upon a finding that the
petitioner was unable to discover the grounds for challenging the
qualifications of the candidate prior to the thirtieth after the
primary election despite the exercise of reasonable diligence.
(3) The petition shall be filed with the circuit court of the
county in which the candidate is seeking office.
(b) The circuit court shall at the earliest possible date set
the matter for hearing, but in no event shall the hearing be held
later than thirty days after the filing of the petition.
(c) The matter shall be tried by the circuit judge, without a
jury. After hearing the evidence, the circuit judge shall
determine whether the candidate whose qualifications have been
challenged is legally qualified to have his or her name placed upon
the ballot in question. The circuit judge shall issue a written
decision on each challenge by separately stating findings of facts,
conclusions of law within ten days of the conclusion of the
hearing.
(d) The burden of proof shall be upon the petitioner, who must
show by a preponderance of the evidence of the record as a whole
that the candidate is not qualified to be a candidate for county
commission.
(e) Within five days after judgment is rendered by the circuit
court, the petitioner or the candidate, or both, may file an appeal
in the Supreme Court upon giving a cost bond in the sum of $300.
The appeal shall be immediately docketed in the Supreme Court and
shall be decided at the earliest possible date, as a preference
case over all others.
(f) The procedure set forth above shall be the sole and only
manner in which the qualifications of a candidate for county
commission may be challenged prior to the time of his or her election. After any such person has been elected to public office,
the election may be challenged as otherwise provided by law. After
any person assumes an elective office, his or her qualifications to
hold that office may be contested as otherwise provided by law.
The bill (Eng. Com. Sub. for H. B. No. 2926), as amended, was
then ordered to third reading.
Eng. House Bill No. 2931, Removing a severance tax on timber
for tax years 2010 through 2013.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page three, section three-b, line twenty-three, by striking
out the word "three" and inserting in lieu thereof the word "two".
The bill (Eng. H. B. No. 2931), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 2958, Increasing the fines
for a trespassing conviction pursuant to certain circumstances.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2961, Adding two members to
the institutional boards of governors of West Virginia University
and Marshall University based upon race, gender and ethnicity.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Plymale, as chair of the Committee on Education, and by unanimous consent, the unreported Education
committee amendment to the bill was withdrawn.
On motion of Senator Plymale, the following amendment to the
bill was reported by the Clerk and adopted:
B
y 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 said code be amended by
adding thereto a new section, designated §18B-1D-9; that §18B-2A-1
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; 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; and that
§29-22-18 of said code be amended and reenacted, 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 of this chapter
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
, shall:
(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 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; Establish standards for
evaluating institutions' requests for tuition and fee increases,
other than at the state institutions of higher education known as
Marshall University and West Virginia University;
(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 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 contained
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 the provisions of 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 the provisions of
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 the provisions
of 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 that are 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 the provisions of 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) Promulgate a joint rule with the Council establishing
tuition and fee policy for all institutions of higher education,
other than 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) (36) 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) (37) 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 the provisions of 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 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-9. Commission, council and institutional governing board
training and development; training and development
requirements, applicability and exceptions.
(a) The commission and council, either jointly or separately,
shall coordinate periodic training and development opportunities
for members of the commission, council and institutional governing
boards as provided in this section.
(b) Within six months of beginning service on the commission,
council or a governing board, each new member shall complete at
least three hours of training and development. The training and
development shall address the following topics:
(1) State goals, objectives and priorities for higher education;
(2) The accountability system for higher education set forth
in this article;
(3) The general powers and duties of members; and
(4) Ethical considerations arising from board membership.
(c) With the exception of the ex officio members of the
commission and the council and the student member of a governing
board, each member shall complete at least six hours of training
and development related to his or her duties within two years of
beginning service and within every two years of service thereafter.
(d) By July 31 each year, the chair of the commission, council
and each governing board shall certify to the commission or
council, as appropriate, the number of hours of training and
development that each member received during the preceding fiscal
year.
(e) If the certification indicates that a board member has not
completed the training and development required by this section,
the commission or council, as appropriate, shall send a notice to
the Governor and the Secretary of State or to the institutional
appointing entity that the board member is disqualified from
continued service notwithstanding the provisions of sections five
and six, article six, chapter six of this code. The commission or
council, as appropriate, shall request the Governor or appointing
entity to appoint a replacement for that board member.
(f) By September 30 each year, the commission and council
shall report to the Legislative Oversight Commission on Education Accountability on the training and development that members of the
commission and the council and the governing boards under their
respective jurisdictions have received during the preceding fiscal
year and shall include this information in the institutional and
statewide report cards provided in section eight of this article.
(g) As used in this section, "member" means all members of the
commission, council and the governing boards unless a specific
exception is provided in this section.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Findings; composition of boards; terms and
qualifications of members; vacancies; eligibility
for reappointment.
(a) Findings. --
The Legislature finds that the State of West Virginia is
served best when the membership of each governing board includes
the following:
(1) The academic expertise and institutional experience of
faculty members and a student of the institution governed by the
board;
(2) The technical or professional expertise and institutional
experience of a classified employee of the institution governed by
the board;
(3) An awareness and understanding of the issues facing the
institution governed by the board; and
(4) The diverse perspectives that arise from a membership that
is balanced in terms of gender and varied in terms of race and ethnic heritage.
(a) (b) Boards of governors established. --
A board of governors is continued at each of the following
institutions: Bluefield State College, Blue Ridge Community and
Technical College,
The Community and Technical College at West
Virginia University Institute of Technology, Concord University,
Eastern West Virginia Community and Technical College, Fairmont
State University, Glenville State College,
Marshall Community and
Technical College, Marshall University, New River Community and
Technical College,
Pierpont Community and Technical College,
Shepherd University, Southern West Virginia Community and Technical
College, West Liberty State
college University, West Virginia
Northern Community and Technical College, the West Virginia School
of Osteopathic Medicine,
West Virginia State Community and
Technical College, West Virginia State University,
and West
Virginia University,
and West Virginia University at Parkersburg.
(b) Independent community and technical colleges established.
--
Effective July 1, 2008, the board of advisors is abolished and
A board of governors is established for Marshall Community and
Technical College; Pierpont Community and Technical College,
formerly a division of Fairmont State University; The Community and
Technical College at West Virginia University Institute of
Technology; West Virginia State Community and Technical College;
and West Virginia University at Parkersburg.
In making the initial appointments to these boards of governors, the Governor may appoint those persons who are lay
members of the boards of advisors by June 30, 2008.
(B) At the end of the initial term, and thereafter
(c) Board Membership. --
(1) An appointment to fill a vacancy on the board or
reappointment of a member who is eligible to serve an additional
term is made in accordance with the provisions of this section.
(c) (2) The
institutional boards board of governors for
Marshall University
and West Virginia University consist consists
of sixteen persons.
The board of governors for West Virginia
University consists of seventeen persons. The boards of governors
of the other state institutions of higher education consist of
twelve persons.
(d) (3) Each board of governors includes the following
members:
(1) (A) A full-time member of the faculty with the rank of
instructor or above duly elected by the faculty of the respective
institution;
(2) (B) A member of the student body in good academic
standing, enrolled for college credit work and duly elected by the
student body of the respective institution;
and
(3) (C) A member from the institutional classified employees
duly elected by the classified employees of the respective
institution;
and
(4) For the
institutional board of governors at Marshall
University, thirteen lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this
section;
(5) For the
institutional board of governors at West Virginia
University, twelve lay members appointed by the Governor, by and
with the advice and consent of the Senate, pursuant to this
section, and additionally:
(A) The chairperson of the board of Visitors of West Virginia
University Institute of Technology;
(B) A full-time faculty member representing the extension
service at the institution or a full-time faculty member
representing the health sciences, selected by the faculty senate.
(6) For each
institutional board of governors of the other
state institutions of higher education, nine lay members appointed
by the Governor, by and with the advice and consent of the Senate,
pursuant to this section.
(e) (A) Of the nine members appointed by the Governor, no more
than five may be of the same political party. Of the thirteen
members appointed by the Governor to the governing board of
Marshall University, no more than eight may be of the same
political party. Of the twelve members appointed by the Governor
to the governing board of West Virginia University, no more than
seven may be of the same political party.
(B) Of the nine members appointed by the Governor, at least
six five shall be residents of the state. Of the thirteen members
appointed by the Governor to the governing board of Marshall
University, at least eight shall be residents of the state. Of the twelve members appointed by the Governor to the governing board of
West Virginia University, at least
eight seven shall be residents
of the state.
(7) In making lay appointments, the Governor shall consider
the institutional mission and membership characteristics including
the following:
(A) The need for individual skills, knowledge and experience
relevant to governing the institution;
(B) The need for awareness and understanding of institutional
problems and priorities, including those related to research,
teaching and outreach;
(C) The value of gender, racial and ethnic diversity; and
(D) The value of achieving balance in gender and diversity in
the racial and ethnic characteristics of the lay membership of each
board.
(f)(d) Board member terms. --
(1) The student member serves for a term of one year. Each
term begins on the first day of July.
(g) The (2) The faculty member serves for a term of two years.
Each term begins on the first day of July. Faculty members are
eligible to succeed themselves for three additional terms, not to
exceed a total of eight consecutive years.
(h)(3) The member representing classified employees serves for
a term of two years. Each term begins on the first day of July.
Members representing classified employees are eligible to succeed
themselves for three additional terms, not to exceed a total of eight consecutive years.
(i)(4) The appointed lay citizen members serve terms of up to
four years each and are eligible to succeed themselves for no more
than one additional term.
(j)(5) A vacancy in an unexpired term of a member shall be
filled for the unexpired term within thirty days of the occurrence
of the vacancy in the same manner as the original appointment or
election. Except in the case of a vacancy, all elections
shall be
are held and all appointments
shall be are made no later than
the
thirtieth day of June
30 preceding the commencement of the term.
Each board of governors shall elect one of its appointed lay
members to be chairperson in June of each year.
except for the
fiscal year beginning July 1, 2008, only, when the board shall
elect the chairperson in July A member may not serve as
chairperson for more than four consecutive years.
(k)(6) The appointed members of the
institutional boards of
governors serve staggered terms of up to four years except that
four of the initial appointments to the governing boards of
community and technical colleges
which become that became
independent July 1, 2008, are for terms of two years and five of
the initial appointments are for terms of four years.
(l)(e) Board member eligibility, expenses. --
(1) A person is ineligible for appointment to membership on a
board of governors of a state institution of higher education under
the following conditions:
(A) For a baccalaureate institution or university, a person is ineligible for appointment who is an officer, employee or member of
any other board of governors; an employee of any institution of
higher education; an officer or member of any political party
executive committee; the holder of any other public office or
public employment under the government of this state or any of its
political subdivisions; an employee of any affiliated research
corporation created pursuant to article twelve of this chapter; an
employee of any affiliated foundation organized and operated in
support of one or more state institutions of higher education; or
a member of the council or commission. This subsection does not
prevent the representative from the faculty, classified employees,
students or the superintendent of a county board of education from
being members of the governing boards.
(B) For a community and technical college, a person is
ineligible for appointment who is an officer, employee or member of
any other board of governors; a member of a board of visitors of
any public institution of higher education; an employee of any
institution of higher education; an officer or member of any
political party executive committee; the holder of any other public
office, other than an elected county office, or public employment,
other than employment by the county board of education, under the
government of this state or any of its political subdivisions; an
employee of any affiliated research corporation created pursuant to
article twelve of this chapter; an employee of any affiliated
foundation organized and operated in support of one or more state
institutions of higher education; or a member of the council or commission. This subsection does not prevent the representative
from the faculty, classified employees,
or students
, or
chairpersons of the boards of advisors from being members of the
governing boards.
(m)(2) Before exercising any authority or performing any
duties as a member of a governing board, each member shall qualify
as such by taking and subscribing to the oath of office prescribed
by Section five, Article IV of the Constitution of West Virginia
and the certificate thereof shall be filed with the Secretary of
State.
(n)(3) A member of a governing board appointed by the Governor
may not be removed from office by the Governor except for official
misconduct, incompetence, neglect of duty or gross immorality and
then only in the manner prescribed by law for the removal of the
state elective officers by the Governor.
(4) The members of the board of governors serve without
compensation, but are reimbursed for all reasonable and necessary
expenses actually incurred in the performance of official duties
under this article upon presentation of an itemized sworn statement
of expenses.
(o) (5) The president of the institution shall make available
resources of the institution for conducting the business of its
board of governors.
All expenses incurred by the board of
governors and the institution under this section are paid from
funds allocated to the institution for that purpose.
The members of the board of governors serve without compensation, but are reimbursed for all reasonable and necessary
expenses actually incurred in the performance of official duties
under this article upon presentation of an itemized sworn statement
of expenses. All expenses incurred by the board of governors and
the institution under this section are paid from funds allocated to
the institution for that purpose.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately
has the following powers and
duties shall:
(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, 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 the provisions of 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) Establish standards for evaluating institutions' requests
for tuition and fee increases;
(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 contained 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 the provisions of 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 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 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 that 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 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. Approve tuition and fee
increases.
(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 problemsolving 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
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) Promulgate a joint rule with the Commission establishing
tuition and fee policy for all institutions of higher education.
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
appropriate;
(63) (62) 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) (63) 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 subsequent 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 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 steps occur:
(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
shall be 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
shall be adopted and prescribed;
(4)
Negotiate for and make Purchases and acquisitions in such
quantities, at such times and under contract,
shall be 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
shall be advertised on all purchases
exceeding $25,000,
to purchase and shall be purchased by means of
sealed
or electronically-submitted bids and competitive bidding or
to effect advantageous purchases
shall be effected through other
accepted governmental methods and practices;
(6)
Post Notices
of all for acquisitions and purchases for
which competitive bids are being solicited
shall be 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 shall be made in the open
market;
(8)
Provide for vendor notification Vendors shall be notified
of bid solicitation and emergency purchasing;
(9)
Provide that Competitive bids are not required for
purchases of $25,000 or less; and
(10)
Provide for not No fewer than three bids
where shall be
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) 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 that 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,
governs govern 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 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 institutional 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 are 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.
(1) 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.
(2) There is hereby created in the State Treasury a special
revenue fund known as the Higher Education Policy Commission
Capital Improvement Fund into which shall be deposited the amounts
specified in subsection (k), section eighteen, article twenty-two,
chapter twenty-nine of this code. 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 college and
university capital improvements.
(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 finds that:
(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
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
institution 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 very 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 all
institutional requests to incur additional debt carefully 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 as 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 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
annually shall set aside adequate funding to ensure that ongoing
facilities maintenance needs are met.
§18B-19-2. Defined terms.
As used in this article, the following terms have the meanings
ascribed to them.
(a) "ADA" means the Americans with Disabilities Act, pursuant
to 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" includes, but is 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 that
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 the failure to perform needed
repair, maintenance and renewal as part of normal maintenance management for capital facilities and deferring such action to a
future budget cycle or until funds are 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, 2010, 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. Institutional campus development planning.
(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, 2012. 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 original 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 and
provide 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 list of potential real property acquisitions and
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 governmental
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 in 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
for in section four 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) Upon receiving 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 the provisions of 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 or through bonding or other 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 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) Whether the revenue to be generated by the institution is
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. At least one
employee shall be Leadership in Energy and Environmental Design
(LEED) certified beginning December 31, 2010.
(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.
(1) The governing board shall employ the following personnel:
(A) A 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; and
(B) At least one employee who is Leadership in Energy and
Environmental Design (LEED) certified beginning December 31, 2010.
(2) The governing board shall adopt a capital project
management rule in accordance with the provisions of section six,
article one of this chapter, that is consistent with the capital
management rules of the Commission and Council, as appropriate.
(3) 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) Approval of project budgets, including a reasonable
contingency reserve for unknown or unexpected expenses and for
bidding;
(iii) Approval of architectural, engineering, construction and
other capital contracts exceeding an amount to be determined by the
governing board;
(iv) Approval of contract modifications and construction change orders; and
(v) Project closeout and final acceptance of the project by
the governing board.
(4) 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.
(5) 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) Adopts a capital project management rule 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 institutional 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; 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) Approval of project budgets, including a reasonable
contingency reserve for unknown or unexpected expenses and for
bidding;
(iii) Approval of architectural, engineering, construction and
other capital contracts exceeding an amount to be determined by the
governing board;
(iv) Approval of contract modifications and construction
change orders; and
(v) 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 move toward annually investing
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 evaluate whether
sufficient resources are being devoted by a governing board for maintenance based on the following criteria:
(1) Maintenance expenditures in comparison 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, as well as regionally and nationally; and
(3) Other purposes as determined by the Commission and
Council.
(b) At a minimum the higher education facilities information
system shall:
(1) Provide 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) Provide 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 the facility information needed to calculate the
building renewal formula.
(c) The Commission and Council shall establish benchmarks for
classroom and class laboratory use. An analysis of utilization
shall be performed 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. The Commission, Council
and governing boards may not sell, lease, convey or otherwise
dispose of any real property without first performing the following
steps:
(1) Having the property appraised by two independent licensed
appraisers and may not sell the property for less than the average
of the two appraisals;
(2) 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;
(3) Holding a public hearing on the issue in the county in
which the real property is located; and
(4) In the case of the Commission, notifying the Joint
Committee on Government and Finance.
(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 for
the state institutions of higher education known as Marshall
University and West Virginia University 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, governing board or institution 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 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 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, in the
name of the state, lease, or offer to lease, as lessee, any
grounds, buildings, office or other space.
(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 necessarily required 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 governing boards 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 therefrom, 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 for real property
exceeding $1 million to which it is a party; and
(2) A report setting forth a detailed summary of the terms of
such 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 and upon approval of the Commission or Council, as
appropriate, before incurring any obligation, a governing board may
sell any building that is on unencumbered real property to which
the board holds title and lease back the same building. The board
may 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) Have the property appraised by two licensed appraisers and
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 payable 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 engineering, architectural,
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 establish 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 that institution in
accordance with the provisions of section thirteen, article ten of
this chapter.
§18B-19-16. Condemnation generally.
(a) The Commission, Council and governing boards each may
acquire by condemnation land or buildings for the use and benefit
of any state institution under its jurisdiction. Any 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, in any event, 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 provisions of 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 the provisions of
article three-a, chapter twenty-nine-a of this code, to implement
the provisions of this article.
§18B-19-18. Reporting.
(a) Beginning July 1, 2012, 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.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18. State Lottery Fund; appropriations and deposits; not
part of general revenue; no transfer of state funds
after initial appropriation; use and repayment of
initial appropriation; allocation of fund for
prizes, net profit and expenses; surplus; State
Lottery Education Fund; State Lottery Senior
Citizens Fund; allocation and appropriation of net
profits.
(a)
There is continued a The special revenue fund in the State
Treasury which
shall be is designated and known as the State
Lottery Fund
is continued. The fund consists of all appropriations
to the fund and all interest earned from investment of the fund and
any gifts, grants or contributions received by the fund. All
revenues received from the sale of lottery tickets, materials and
games shall be deposited with the State Treasurer and placed into
the State Lottery Fund. The revenue shall be disbursed in the
manner provided in this section for the purposes stated in this
section and
shall may not be treated by the
State Auditor and
State
Treasurer as part of the general revenue of the state.
(b)
No An appropriation, loan or other transfer of state funds
may
not be made to the Commission or Lottery Fund after the initial
appropriation.
(c) A minimum annual average of forty-five percent of the
gross amount received from each lottery shall be allocated and
disbursed as prizes.
(d) Not more than fifteen percent of the gross amount received
from each lottery may be allocated to and may be disbursed as
necessary for fund operation and administration expenses:
Provided, That for the period beginning the first day of the month
following the first passage of a referendum election held pursuant
to section seven, article twenty-two-c of this chapter and for
eighteen months thereafter, not more than seventeen percent of the
gross amount received from each lottery shall be allocated to and
may be disbursed as necessary for fund operation and administration expenses.
(e) The excess of the aggregate of the gross amount received
from all lotteries over the sum of the amounts allocated by
subsections (c) and (d) of this section shall be allocated as net
profit. In the event that the percentage allotted for operations
and administration generates a surplus, the surplus shall be
allowed to accumulate to an amount not to exceed $250,000. On a
monthly basis, the director shall report to the Joint Committee on
Government and Finance of the Legislature any surplus in excess of
$250,000, and remit to the State Treasurer the entire amount of
those surplus funds in excess of $250,000, which shall be allocated
as net profit.
(f) After first satisfying the requirements for funds
dedicated to the School Building Debt Service Fund in subsection
(h) of this section to retire the bonds authorized to be issued
pursuant to section eight, article nine-d, chapter eighteen of this
code, then satisfying the requirements for funds dedicated to the
Education, Arts, Sciences and Tourism Debt Service Fund in
subsection (i) of this section to retire the bonds authorized to be
issued pursuant to section eleven-a, article six, chapter five of
this code,
and then satisfying the requirements for funds dedicated
to the Community and Technical College Capital Improvement Fund in
subsection (j) of this section to retire the bonds for community
and technical college capital improvements authorized to be issued
pursuant to section eight, article ten, chapter eighteen-b of this
code,
and then satisfying the requirements for funds dedicated to the Higher Education Policy Commission Capital Improvement Fund in
subsection (k) of this section to retire the bonds for college and
university capital improvements authorized to be issued pursuant to
section eight, article ten, chapter eighteen-b of this code, any
and all remaining funds in the State Lottery Fund shall be made
available to pay debt service in connection with any revenue bonds
issued pursuant to section eighteen-a of this article, if and to
the extent needed for
such that purpose from time to time. The
Legislature
annually shall
annually appropriate all of the
remaining amounts allocated as net profits in subsection (e) of
this section, in
such the proportions
as it considers beneficial to
the citizens of this state, to: (1) The Lottery Education Fund
created in subsection (g) of this section; (2) the School
Construction Fund created in section six, article nine-d, chapter
eighteen of this code; (3) the Lottery Senior Citizens Fund created
in subsection
(k) (l) of this section; and (4) the Division of
Natural Resources created in section three, article one, chapter
twenty of this code and the West Virginia Development Office as
created in section one, article two, chapter five-b of this code,
in accordance with subsection
(l) (m) of this section.
No A
transfer to any account other than the School Building Debt Service
Fund, the Education, Arts, Sciences and Tourism Debt Service Fund,
the Community and Technical College Capital Improvement Fund,
the
Higher Education Policy Commission Capital Improvement Fund, the
Economic Development Project Fund created under section eighteen-a,
article twenty-two, chapter twenty-nine of this code, or any fund from which debt service is paid under subsection (c), section
eighteen-a of this article may
not be made in any period of time in
which a default exists in respect to debt service on bonds issued
by the School Building Authority, the State Building Commission,
the Higher Education Policy Commission, the Economic Development
Authority or which are otherwise secured by lottery proceeds.
No
An additional transfer may
not be made to any account other than
the School Building Debt Service Account,
and the Education, Arts,
Sciences and Tourism Debt Service Fund,
and the Community and
Technical College Capital Improvement Fund
and the Higher Education
Policy Commission Capital Improvement Fund when net profits for the
preceding twelve months are not at least equal to one hundred fifty
percent of debt service on bonds issued by the School Building
Authority, the State Building Commission and the Higher Education
Policy Commission which are secured by net profits.
(g)
There is continued a The special revenue fund in the State
Treasury which
shall be is designated and known as the Lottery
Education Fund
is continued. The fund shall consist of the amounts
allocated pursuant to subsection (f) of this section, which shall
be deposited into the Lottery Education Fund by the State
Treasurer. The Lottery Education Fund
also shall
also consist of
all interest earned from investment of the Lottery Education Fund
and any other appropriations, gifts, grants, contributions or
moneys received by the Lottery Education Fund from any source. The
revenues received or earned by the Lottery Education Fund shall be
disbursed in the manner provided
below in this section and may not be treated by the
State Auditor and
State Treasurer as part of the
general revenue of the state. Annually, the Legislature shall
appropriate the revenues received or earned by the Lottery
Education Fund to the state system of public and higher education
for these educational programs it considers beneficial to the
citizens of this state.
(h) On or before the twenty-eighth day of each month, as long
as revenue bonds or refunding bonds are outstanding, the lottery
director shall allocate to the School Building Debt Service Fund
created pursuant to the provisions of section six, article nine-d,
chapter eighteen of this code, as a first priority from the net
profits of the lottery for the preceding month, an amount equal to
one tenth of the projected annual principal, interest and coverage
ratio requirements on any and all revenue bonds and refunding bonds
issued, or to be issued, on or after April 1, 1994, as certified to
the lottery director in accordance with the provisions of section
six, article nine-d, chapter eighteen of this code. In
no any
event,
shall the monthly amount allocated
may not exceed $1.8
million, nor may the total allocation of the net profits to be paid
into the School Building Debt Service Fund, as provided in this
section, in any fiscal year exceed the lesser of the principal and
interest requirements certified to the lottery director or $18
million. In the event there are insufficient funds available in
any month to transfer the amount required to be transferred
pursuant to this subsection to the School Debt Service Fund, the
deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the
deficiency. A lien on the proceeds of the State Lottery Fund up to
a maximum amount equal to the projected annual principal, interest
and coverage ratio requirements, not to exceed $27 million
annually, may be granted by the School Building Authority in favor
of the bonds it issues which are secured by the net lottery
profits. When the school improvement bonds, secured by profits
from the lottery and deposited in the School Debt Service Fund,
mature, the profits shall become available for debt service on
additional school improvement bonds as a first priority from the
net profits of the lottery or may at the discretion of the
authority be placed into the School Construction Fund created
pursuant to the provisions of section six, article nine-d, chapter
eighteen of this code.
(i) Beginning on or before July 28, 1996, and continuing on or
before the twenty-eighth day of each succeeding month thereafter,
as long as revenue bonds or refunding bonds are outstanding, the
lottery director shall allocate to the Education, Arts, Sciences
and Tourism Debt Service Fund created pursuant to the provisions of
section eleven-a, article six, chapter five of this code, as a
second priority from the net profits of the lottery for the
preceding month, an amount equal to one tenth of the projected
annual principal, interest and coverage ratio requirements on any
and all revenue bonds and refunding bonds issued, or to be issued,
on or after April 1, 1996, as certified to the lottery director in
accordance with the provisions of that section. In
no any event
may the monthly amount allocated
may not exceed $1 million, nor may
the total allocation paid into the Education, Arts, Sciences and
Tourism Debt Service Fund, as provided in this section, in any
fiscal year exceed the lesser of the principal and interest
requirements certified to the lottery director or $10 million. In
the event there are insufficient funds available in any month to
transfer the amount required pursuant to this subsection to the
Education, Arts, Sciences and Tourism Debt Service Fund, the
deficiency shall be added to the amount transferred in the next
succeeding month in which revenues are available to transfer the
deficiency. A second-in-priority lien on the proceeds of the State
Lottery Fund up to a maximum amount equal to the projected annual
principal, interest and coverage ratio requirements, not to exceed
$15 million annually, may be granted by the State Building
Commission in favor of the bonds it issues which are secured by the
net lottery profits.
(j) Beginning on or before July 28, 2008, and continuing on or
before the twenty-eighth day of each succeeding month thereafter,
as long as revenue bonds or refunding bonds are outstanding, the
lottery director shall allocate to the Community and Technical
College Capital Improvement Fund, created pursuant to section
eight, article ten, chapter eighteen-b of this code, as a third
priority from net profits of the lottery for the preceding month,
an amount equal to one tenth of the projected annual principal,
interest and coverage ratio requirements on any and all revenue
bonds and refunding bonds issued or to be issued, on or after April 1, 2008, as certified by the lottery director in accordance with
the provisions of that section. In
no any event
may the monthly
amount allocated
may not exceed $500,000, nor may the total
allocation paid to the Community and Technical Capital Improvement
Fund, as provided in this section, in any fiscal year exceed the
lesser of the principal and interest requirements certified to the
lottery director or $5 million. In the event there are
insufficient funds available in any month to transfer the amount
required pursuant to this subsection to the Community and Technical
College Capital Improvement Fund, the deficiency shall be added to
the amount transferred in the next succeeding month in which
revenues are available to transfer the deficiency.
(1) A third-in-priority lien on the proceeds of the State
Lottery Fund up to a maximum amount equal to the projected annual
principal, interest and coverage ratio requirements, not exceeding
$7.5 million annually, may be granted by the Higher Education
Policy Commission in favor of the bonds it issues which are secured
by the net lottery profits. When the bonds secured by the profits
from the lottery and deposited in the Education, Arts, Sciences and
Tourism Debt Service Fund as provided in subsection (i) of this
section mature or are paid in full, the bonds issued by the Higher
Education Policy Commission for which lottery profits are pledged
as provided in this subsection shall be considered to have a
second-in-priority lien on the net profits deposited in the State
Lottery Fund.
(2) When the community and technical college capital improvement bonds secured by profits from the lottery and deposited
in the Community and Technical College Capital Improvement Fund
mature, the profits shall become available for debt service on
additional community and technical college capital improvement
bonds,
if approved by resolution of the Legislature, as a second
priority from the net profits of the lottery.
(3) The Council for Community and Technical College Education
shall approve all community and technical college capital
improvement plans prior to the distribution of bond proceeds.
(k) Beginning on the twenty-eighth day of the month after the
bonds secured by the profits from the lottery and deposited in the
Education, Arts, Sciences and Tourism Debt Service Fund as provided
in subsection (i) of this section mature or are paid in full and on
or before the twenty-eighth day of each succeeding month
thereafter, as long as revenue bonds or refunding bonds are
outstanding, the lottery director shall allocate to the Higher
Education Policy Commission Capital Improvement Fund, created
pursuant to section eight, article ten, chapter eighteen-b of this
code, as a third priority from net profits of the lottery for the
preceding month, an amount equal to one tenth of the projected
annual principal, interest and coverage ratio requirements on any
and all revenue bonds and refunding bonds issued or to be issued,
on or after May 1, 2009, as certified by the lottery director in
accordance with the provisions of that section. In any event, the
monthly amount allocated may not exceed $1 million, nor may the
total allocation paid to the Higher Education Policy Commission Capital Improvement Fund, as provided in this section, in any
fiscal year exceed the lesser of the principal and interest
requirements certified to the lottery director or $10 million. In
the event there are insufficient funds available in any month to
transfer the amount required pursuant to this subsection to the
Higher Education Policy Commission Capital Improvement Fund, the
deficiency shall be added to the amount transferred in the next
succeeding month in which revenues are available to transfer the
deficiency.
(1) A third-in-priority lien on the proceeds of the State
Lottery Fund up to a maximum amount equal to the projected annual
principal, interest and coverage ratio requirements, not exceeding
$15 million annually, may be granted by the Higher Education Policy
Commission in favor of the bonds it issues under this subsection
and which are secured by the net lottery profits.
(2) When the college and university capital improvement bonds
secured by profits from the lottery and deposited in the Higher
Education Policy Commission Capital Improvement Fund mature, the
profits shall become available for debt service on additional
college and university capital improvement bonds, if approved by
resolution of the Legislature, as a third priority from the net
profits of the lottery.
(3) The Higher Education Policy Commission shall allocate at
least thirty percent of funds generated from the sale of bonds
pursuant to this subsection equally between the state's two
doctoral degree-granting universities to further the objective of developing greater research capacity set forth in subdivision (8),
subsection (b), section three, article one-d of this chapter.
(k) (l) There is continued a The special revenue fund in the
State Treasury which
shall be is designated and known as the
Lottery Senior Citizens Fund
is continued. The fund shall consist
of the amounts allocated pursuant to subsection (f) of this
section, which amounts shall be deposited into the Lottery Senior
Citizens Fund by the State Treasurer. The Lottery Senior Citizens
Fund
also shall
also consist of all interest earned from investment
of the Lottery Senior Citizens Fund and any other appropriations,
gifts, grants, contributions or moneys received by the Lottery
Senior Citizens Fund from any source. The revenues received or
earned by the Lottery Senior Citizens Fund shall be distributed in
the manner provided
below in this subsection and may not be treated
by the
State Auditor or
State Treasurer as part of the general
revenue of the state. Annually, the Legislature shall appropriate
the revenues received or earned by the Lottery Senior Citizens Fund
to any senior citizens medical care and other programs it considers
beneficial to the citizens of this state.
(l) (m) The Division of Natural Resources and the West
Virginia Development Office, as appropriated by the Legislature,
may use the amounts allocated to them pursuant to subsection (f) of
this section for one or more of the following purposes:
(1) The payment of any or all of the costs incurred in the
development, construction, reconstruction, maintenance or repair of
any project or recreational facility, as these terms are defined in section four, article five, chapter twenty of this code, pursuant
to the authority granted to it under said article;
(2) The payment, funding or refunding of the principal of,
interest on or redemption premiums on any bonds, security interests
or notes issued by the parks and recreation section of the Division
of Natural Resources under article five, chapter twenty of this
code; or
(3) The payment of any advertising and marketing expenses for
the promotion and development of tourism or any tourist facility or
attraction in this state.
The bill (Eng. Com. Sub. for H. B. No. 2961), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2976, Requiring the State
Fire Commission to promulgate rules pertaining to the State
Building Code.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page three, section five-b, by striking out all of
subsection (c) and inserting in lieu thereof the following:
(c) The State Fire Commission shall propose a rule for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code to include the following
building energy codes in the State Building Code:
(1) The 2009 edition of the International Energy Conservation Code for residential buildings or other building energy code or
codes for residential buildings that meets or exceeds equivalent
energy savings; and
(2) The ANSI/ASHRAE/IESNA Standard 90.1-2007 building energy
code for commercial buildings or other building energy code or
codes for commercial buildings that meets or exceeds equivalent
energy savings.
The bill (Eng. Com. Sub. for H. B. No. 2976), as amended, was
then ordered to third reading.
Eng. House Bill No. 3047, Clarifying that the Director of the
Public Employees Insurance Agency is authorized to enter into
capitated provider arrangements for provision of primary health
care services.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3074, Allowing the Secretary
of State to notify people with delinquent taxes by certified mail.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3170, Clarifying the filing and review of
the periodic accountings of conservators of incapacitated protected
persons.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §44A-1-7, §44A-1-9, §44A-1-10 and §44A-1-14 of the Code
of West Virginia, 1931, as amended, be amended and reenacted; that
§44A-2-1, §44A-2-5, §44A-2-6, §44A-2-7, §44A-2-12, §44A-2-13,
§44A-2-13a, §44A-2-14 and §44A-2-15 of said code be amended and
reenacted; that §44A-3-11 of said code be amended and reenacted;
and that §44A-4-1 and §44A-4-5 of said code be amended and
reenacted, all to read as follows:
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND CONSERVATORSHIP ACT.
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-7. Transfer of venue following appointment.
(a) Following the appointment of a full or limited guardian or
conservator or committee, the court with jurisdiction over the
proceeding may
upon petition, order the transfer of jurisdiction to
another circuit court in this state or to an appropriate tribunal
in another state if it appears to the court that the interests of
the protected person will be best served by such transfer.
Transfer of jurisdiction to another state shall be in accordance
with the provisions of chapter forty-four-c of this code.
(b) Upon the transfer, the
court shall appoint a new
previously appointed guardian or conservator
in shall report to the
county
of transfer that is assuming jurisdiction
and shall
discharge the original appointee. Any changes to the appointments
shall be made by the court assuming jurisdiction.
§44A-1-9. Posting of bonds; actions on bond.
(a) The court has the discretion to determine whether the
posting of a bond by a guardian, once appointed, is necessary. No
bond is required of any sheriff or representative of the Department
of Health and Human Resources appointed as conservator or guardian,
respectively.
(b) The court shall
require order the posting of a bond by a
conservator
upon prior to appointment except where the conservator
is excused from posting bond under the provisions of section
eighteen, article four, chapter thirty-one-a of this code. In
determining the amount or type of a conservator's bond, the court
or mental hygiene commissioner shall consider:
(1) The value of the personal estate and annual gross income
and other receipts within the conservator's control;
(2) The extent to which the estate has been deposited under an
arrangement requiring an order of court for its removal;
(3) Whether an order has been entered waiving the requirement
that accountings be filed and presented or permitting accountings
to be presented less frequently than annually;
(4) The extent to which the income and receipts are payable
directly to a facility responsible for or which has assumed
responsibility for the care or custody of the protected person;
(5) The extent to which the income and receipts are derived
from state or federal programs that require periodic accountings;
(6) Whether a guardian has been appointed, and if so, whether
the guardian has presented reports as required; and
(7) Whether the conservator was appointed pursuant to a nomination which requested that bond be waived.
(c) Any required bond
shall may be with a surety and in an
amount and form as the court may order and the court may order
additional bond or reduce the bond whenever the court finds that a
modification is in the best interests of the protected person or of
the estate. The court may allow a property bond in lieu of a cash
bond. Proof of bonding must be submitted to the court within
thirty days of
appointment entry of the order regarding bond.
(d) In case of a breach of any condition placed on the bond of
any guardian or conservator, an action may be instituted by any
interested person for the use and benefit of the protected person,
for the estate of the protected person or for the beneficiaries of
the estate.
(e) The following requirements and provisions apply to any
bond which the court may require under this section:
(1) Sureties are jointly and severally liable with the
guardian
or conservator and with each other;
(2) By executing an approved bond of a guardian or
conservator, the surety consents to the jurisdiction of the court
in any proceeding pertaining to the fiduciary duties of the
conservator and naming the surety as a party respondent. Notice of
any proceeding must be delivered to the surety or mailed by
registered or certified mail to the address of the surety listed
with the court in which the bond is filed. If the party initiating
a proceeding possesses information regarding the address of a
surety which would appear to be more current than the address listed with the court, notice shall also be mailed by registered or
certified mail to the last address of the surety known to the party
initiating the proceeding;
(3) On petition of a successor guardian or conservator or any
interested person, a proceeding may be initiated against a surety
for breach of the obligation of the bond of the preceding guardian
or conservator; and
(4) The bond of the guardian or conservator is not void after
any recovery but may be proceeded against from time to time until
the whole penalty is exhausted.
(f) No proceeding may be commenced against the surety on any
matter as to which an action or proceeding against the guardian or
conservator is barred by adjudication or limitation.
§44A-1-10. Mandatory education; written material; and forms.
(a) Any individual appointed to serve as a guardian or
conservator must receive educational material or complete mandated
educational training, unless the court enters an order stating that
the individual does not require the mandated educational training
because he or she has completed the mandated educational training
within the last three years.
(b) Upon a determination that the individual who is the
subject of proceedings under this chapter is a protected person, as
defined in section four of this article, the required educational
training must be completed within thirty days of the court's
determination. Upon completion, the appointed guardian or
conservator shall provide an affidavit to the court, certifying that the educational training has been completed, and the court
shall forthwith issue the order of appointment in accordance with
the provisions of section thirteen, article two of this chapter.
(c)
The secretary of health and human resources shall develop
and implement an educational program for guardians and
conservators. The secretary The West Virginia Supreme Court of
Appeals shall coordinate the education program for guardians and
conservators, shall update the program materials and requisite
forms at least every two years and shall also propose legislative
rules for promulgation, in accordance with the provisions of
chapter twenty-nine-a of this code, regarding mandatory educational
training for guardians and conservators. The educational training
may include the following:
(1) Written materials;
(2) Recorded information, whether audio, visual or both; or
(3) A combination of the above.
§44A-1-14. Temporary protective orders.
The court
or mental hygiene commissioner may, at the request
of a petitioner or upon its own motion, issue
a temporary
protective
order orders freezing bank or investment accounts,
ordering the production of records and otherwise prohibiting or
limiting the expenditure, sale or other legal transfer of any
assets of the alleged protected person until
the appointment
proceeding has been held a final order is entered revoking the
protective orders.
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-1. Filing of petition; jurisdiction; fees; special revenue
account established; duties of Auditor.
(a) A petition for the appointment of a guardian or
conservator shall be filed with the clerk of the circuit court in
the county in which the alleged protected person resides or, if an
alleged protected person has been admitted to a health care or
correctional facility, in the county in which that facility is
located. A petition for the appointment of a conservator for a
missing person shall be filed with the clerk of the circuit court
in the county in which the missing person last resided.
The
circuit clerk is not required to accept for filing a petition that
is not administratively complete.
(b) The circuit court in which the proceeding is first
commenced shall have exclusive jurisdiction unless that court
determines that a transfer of venue would be in the best interests
of the person alleged to need protection.
(c) The fee for filing a petition shall be
ninety $110 payable
upon filing to the circuit clerk, $75 of which shall be retained by
the circuit clerk and
fifteen $35 of which shall be remitted by the
circuit clerk to the special revenue account in the State Treasury
created in subsection
(d) (e) of this section.
(d) The person bringing the petition shall be responsible for
fees for
filings of filing the petition and other papers, for
service of process, and for copies of court documents and
transcripts. In the event that a guardian, conservator, or both,
is appointed by the court, such fees shall be reimbursed to the individual who filed the petition from the protected person's
estate, if funds are available. Any person who is pecuniarily
unable to pay
such the fees and costs as set forth in article one,
chapter fifty-nine of this code and article two, chapter fifty-one
of this code will not be required to pay
said the fees and costs.
(d) (e) There is hereby created in the State Treasury a
special revenue account, which shall be an interest-bearing
account, to be known as the Enforcement of Guardianship and
Conservatorship Act Fund.
(e) (f) The accounts established The reports of guardians and
inventory and accountings of conservators required by pursuant to
the provisions of this chapter shall be examined
annually semi-
annually by the
state auditor in accordance with the provisions of
section seven, article nine, chapter six of this code, and the
state auditor shall authorize payments from the fund created in
this subsection (d) of this section for expenses incurred in
performing such examinations. fiduciary commissioner or other
person appointed by the court in accordance with section eleven,
article three of this chapter.
(g) The special revenue account known as the Enforcement of
Guardianship and Conservatorship Act Fund, previously administered
by the State Auditor, shall, on and after the amendment and
reenactment of this section, be administered by the West Virginia
Supreme Court of Appeals. All moneys previously collected for
deposit into the fund pursuant to this chapter and not expended in
accordance with this chapter shall be transferred to the West Virginia Supreme Court of Appeals. All collections shall be
deposited and used for payment of fiduciary commissioner or other
person appointed by the court for review of the reports required by
section eleven, article three of this chapter and the education
program required by section ten, article one of this chapter.
§44A-2-5. Confidentiality.
Upon filing of a petition requesting appointment of a guardian
or conservator, all pleadings, exhibits and other documents
contained in the court file shall be considered confidential and
not open for public inspection, either during the pendency of the
case or after the case is closed.
However, the contents of the
court file shall be open to inspection and copying by the parties,
their designees, and their attorneys The protected person, and his
or her attorney, may inspect or copy the file. Another party may
file a petition stating the reasons for inspecting or copying the
file and, upon good cause shown, the court or mental hygiene
commissioner may authorize the party, or his or her attorney, to
inspect and copy the file.
§44A-2-6. Notice of hearing.
(a) Upon the filing of the petition and evaluation report, the
court shall promptly issue a notice fixing the date, hour and
location for a hearing to take place within sixty days.
(b) The alleged protected person shall be personally served
with the notice, a copy of the petition and the evaluation report
not less than fourteen days before the hearing. The person may not
waive notice and a failure to properly notify the person shall be jurisdictional.
(c) A copy of the notice, together with a copy of the
petition, shall be mailed by certified mail, return receipt
requested, by the petitioner, at least fourteen days before the
hearing to all individuals seven years of age or older and to all
entities whose names and post office addresses appear in the
petition. In the case of a missing person, a copy of the petition
for the appointment of a conservator shall be mailed by certified
mail, return receipt requested, by the petitioner, at least
fourteen days before the hearing to the last known address of the
missing person. A copy of certified mail return receipts shall be
filed in the office of the circuit clerk on or before the date of
hearing.
It is the responsibility of the petitioner to obtain
proper service and file the appropriate documentation with the
circuit clerk before the hearing.
(d) The notice shall include a brief statement in large print
of the purpose of the proceedings and shall inform the alleged
protected person of the right to appear at the hearing, the right
to an attorney and the right to object to the proposed appointment.
Additionally, the notice shall include the following statement in
large print:
POSSIBLE CONSEQUENCES OF A COURT FINDING
THAT YOU ARE INCAPACITATED
At the hearing you may lose many of your rights. A guardian
may be appointed to make personal decisions for you. A conservator
may be appointed to make decisions concerning your property and finances. The appointment may affect control of how you spend your
money, how your property is managed and controlled, who makes your
medical decisions, where you live, whether you are allowed to vote
and other important rights.
(e) No person may be appointed a guardian or conservator
without first receiving proper notice and having the opportunity
for to be present at a hearing.
§44A-2-7. Appointment of counsel.
(a) The court shall appoint legal counsel for the alleged
protected person
to make recommendations to the court that are in
the best interests of the alleged protected person. In appointing
legal counsel, the court shall consider any known preferences of
the alleged protected person,
or an alleged protected person may
hire and pay for an attorney of his or her choice.
(b) Legal counsel shall have the following major areas of
concern: (1) Whether or not a guardian
or conservator is needed;
(2) limitation of the role of the guardian
or conservator to the
protected person's specific needs -- e. g., personal supervisor,
business affairs, medical consent only; (3) if needed, assure that
the person or entity
with the greatest interest in that will act in
the best interest of the protected person is appointed; (4) if
needed, assure the adequacy of the bond; and (5) if needed, assure
consideration of proper placement.
(c) In responsibly pursuing the major areas of concern set
forth in subsection (b) of this section, counsel may perform any or
all of the following: (1) Promptly notify the individual and any caretaker of the appointment of counsel; (2) contact any caretaker,
review the file and all other relevant information; (3) maintain
contact with the client throughout the case and assure that the
client is receiving services as are appropriate to the client's
needs; (4) contact persons who have or may have knowledge of the
client; (5) interview all possible witnesses; (6) pursue discovery
of evidence, formal and informal,
including obtaining medical and
financial records; (7) file appropriate motions,
including
temporary protective orders; (8) obtain independent psychological
examinations, medical examinations, home studies, as needed; (9)
advise the client on the ramifications of the proceeding and
inquire into the specific interests and desires of the individual;
(10) subpoena witnesses to the hearing; (11) prepare testimony for
cross-examination of witnesses to assure relevant material is
introduced; (12) review all medical reports; (13) apprise the
decision maker of the individual's desires; (14) produce evidence
on all relevant issues; (15) interpose objections to inadmissible
testimony;
and otherwise zealously represent the interests and
desires of the client; (16) raise appropriate questions to all
nominations for guardian
and conservator and the adequacy of the
bond; (17) take all steps to limit the scope of guardianship
and
conservatorship to the individual's actual needs, and make all
arguments to limit the amount of the intervention; (18) ensure that
the court considers all issues as to the propriety of the
individual's current or intended
housing or placement and that the
limitations are set forth in the order; (19) inform the client of the right to appeal, and file an appeal to an order when
appropriate;
and (20) file a motion for modification of an order or
a petition for a writ of habeas corpus if a change of circumstances
occurs which warrants a modification or termination
upon counsel
being reappointed by the court; and (21) otherwise zealously
represent the interests and desires of the client while also
reporting to the court what actions are in the best interests of
the client.
(d) The protected person shall have the right to an
independent expert of his or her choice to perform an evaluation
and present evidence.
(e) A person appointed by the court as counsel for a
nonindigent alleged protected person shall inform the court or the
mental hygiene commissioner of his or her hourly rate at the onset
of the case and seek approval of his or her fee for the case by
submitting it to the court or the mental hygiene commissioner for
approval using forms provided by the West Virginia Supreme Court of
Appeals. The hourly rate and fee for the case must be reasonable
in light of the going rate for legal services, the complexity of
the matter and the amount of legal work involved. The court may
set the fee at the time of appointment.
§44A-2-12. Limited conservatorships.
(a) A limited conservator may be appointed for an individual
deemed to be a protected person in need of a conservator within the
meaning of section four, article one of this chapter, but whose
property or financial affairs are so limited that there is only one or more designated contexts for which a limitation of the
individual's legal rights is warranted.
(b) No conservator shall be appointed for a person whose only
source or major source of income and property is from the Social
Security Administration and who has a representative payee
functioning in the best interest of the individual, or for such
other person whose opportunity for regular expenditure of resources
is so limited that the only practical effect of the appointment of
a conservator would be to deprive the individual of the right of
daily decisions involving minor personal matters.
§44A-2-13. Order of appointment; notice; notice of appointment.
(a) An order appointing a guardian or conservator may only be
issued by the court upon the following:
(1) The guardian or conservator has subscribed to and filed an
oath promising to faithfully perform the duties of the office in
accordance with all provisions of this chapter;
(2) Posting of any bond, if required; and
(3) The completion of mandatory education, as required under
the provisions of section ten, article one of this chapter, unless
the court enters an order stating that an individual does not
require educational training because he or she has completed the
mandatory education within the last three years.
(b) In addition to the findings of fact and conclusions of law
required in section nine of this article, the order shall include
the specific areas of protection or assistance granted in the case
of a guardian and the specific areas of management and assistance granted in the case of a conservator
and address other areas of
concern pursuant to the circumstances of the case.
(c) Within fourteen days following the entry of an order of
appointment, the guardian or conservator shall mail a copy of the
order of appointment, together with a brief statement in large
print of rights to seek an appeal for modification or termination,
to the protected person and to all individuals and entities given
notice of the petition.
(d) Within ten days following the entry of an order of
appointment, the circuit clerk shall mail a notice of appointment
for recordation in the office of the clerk of the county commission
to be recorded with the records of deeds and records of powers of
attorneys, and listed in the appropriate indexes under the name of
the protected person stating the case name and number, the name of
the protected person, and the names of the guardian and conservator
so that persons are put on notice of the existence of a
guardianship or conservatorship.
§44A-2-13a. Time of entry of orders.
The mental hygiene commissioner or the court shall prepare an
order within fourteen days of the hearing directing the appointees
to complete the mandatory education and post any required bond
within thirty days of the hearing. After the mandatory education
is completed and the bond posted, then the court shall enter a
final order on the petition within fourteen days.
§44A-2-14. Temporary guardians and conservators.
(a) The court may appoint a temporary guardian or temporary conservator, or both, under this section upon a finding that an
immediate need exists, that adherence to the procedures otherwise
set forth in this chapter for the appointment of a guardian or
conservator may result in significant harm to a person or the
estate, and that no other individual or entity appears to have
authority to act on behalf of the person, or that the individual or
entity with authority to act is unwilling, or has ineffectively or
improperly exercised the authority.
(b) A temporary guardian or temporary conservator shall have
only those powers and duties
which that are specifically set forth
in the order of appointment. The appointment of a temporary
guardian or temporary conservator shall expire within
forty-five
days six months unless
it is terminated or extended
for up to six
months by the court
for an additional forty-five days for good
cause shown.
(c) An appointment of a temporary guardian or temporary
conservator shall be made upon timely and adequate notice to the
protected person after appointment or notice of appearance of
counsel and after all other protections have been afforded, in
accordance with due process of law, including any other conditions
as the court may order. The protected person may petition the
court for a substitution of a temporary guardian or temporary
conservator at any time.
(d) Within five days following the entry of an order of
appointment, a temporary guardian or temporary conservator shall mail a copy of the order of appointment, together with a brief
statement in large print of rights to seek an appeal for
modification or termination, to the person for whom the appointment
was made and to all individuals and entities that would be entitled
to notice of hearing on a petition for appointment as set forth in
section six of this article.
§44A-2-15. Notice of hearing on petitions subsequent to the
appointment of a guardian or conservator.
(a) Except as otherwise provided herein or as ordered by the
court for good cause shown, notice of hearing on a petition for an
order subsequent to the appointment of a guardian or conservator
shall be personally served upon the protected person and mailed to
all attorneys of record an appointed counsel or attorney of record,
to those individuals who would be entitled to notice of the filing
of an original petition to appoint, to any facility that is
responsible for the care or and custody of the protected person, to
the guardian or conservator, if the guardian or conservator is not
the petitioner, and to such other individuals or entities as the
court may order.
(b) Unless otherwise ordered by the court, the notice shall be
personally served upon the protected person or and mailed by the
petitioner by certified mail return receipt requested to other
parties entitled to notice at least fourteen days prior to the
hearing and shall be accompanied by a copy of the petition and
other relevant documents. A copy of the certified mail return
receipts shall be filed in the office of the circuit clerk on or before the date of the hearing. If deceased, notice to a protected
person shall be sent to his or her last known address or to his or
her successors in interest, if known.
(c) The court or mental hygiene commissioner may conduct
hearings on subsequent petitions filed pursuant to this chapter.
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-11. Filing of reports and accountings; misdemeanor for
failure to file; reporting elder abuse.
(a) Reports of guardians and accountings of conservators, as
described in this article shall be filed with the circuit clerk of
the county in which appointed on a semi-annual basis during the
first twelve months of the guardian's or conservator's appointment
and:
(1) Within six months of being appointed;
(1) (2) On the first day of February By December 31 of each
year thereafter;
(2) (3) When the court orders additional reports or
accountings to be filed;
(3) (4) When the guardian or conservator resigns or is
removed; and
(4) (5) When the appointment of the guardian or conservator is
terminated, except that in the case of a guardian, the court may
determine that there is no need for a report upon the termination;
and in the case of a conservator, no accounting is required if all
persons entitled to any proceeds of the estate consent thereto.
(b) A guardian or conservator may elect to file a periodic
report or accounting on a calendar-year basis; however, in no event
may such a report or accounting cover a period of more than one
year. A calendar-year report or accounting shall be filed with the
circuit clerk no later than the fifteenth day of April of the
succeeding year. The circuit clerk shall notify the court if the
required reports are not filed or are administratively incomplete.
The fiduciary commissioner, or other person appointed by the court
or mental hygiene commissioner, shall review the reports and
accountings semiannually, and may request additional information
from the guardian or conservator. If the reports or accountings
are not filed, or if there are any questions or discrepancies in
the reports or accountings, the person reviewing the report shall
notify the court or mental hygiene commissioner for further
investigation or action of the court, including but not limited to,
a court order requesting copies of bank or investment records,
appointing counsel to investigate the matter or setting a hearing
on the matter.
(c) If the court has in its order made a referral to the
fiduciary commissioner of the county:
(1) The accounting shall be governed by and the fiduciary
commissioner shall handle the same under the provisions of sections
ten, eleven, twelve, thirteen and fourteen, article four, chapter
forty-four of this code, except that all compensation and expenses
of the conservator shall be allowed and approved only by the
circuit court in accordance with the provisions of section thirteen, article one of this chapter.
(2) The fiduciary commissioner may not publish any notice
concerning the filing of a proposed accounting, but shall serve a
copy of the proposed accounting of the conservator together with
the notice by United States mail on the protected person, all
individuals and entities given notice of the petition and any other
person or entity found to be interested in the affairs of the
protected person, all of whom have standing to file exceptions to
or falsify the accounting before the fiduciary commissioner.
(3) In the settlement of the accounting of a conservator, the
fiduciary commissioner is entitled to fees as are allowed for
fiduciary commissioners in the handling of accountings of a
decedent's estate, or as otherwise set by order of the circuit
court.
(4) If the court or mental hygiene commissioner appoints a
person other than the fiduciary commissioner to review the reports,
such person shall report to the court as required by this article.
The court shall establish a fee for reviewing a report which shall
be paid by the Supreme Court of Appeals from the Enforcement of
Guardianship and Conservatorship Act Fund.
(5) Any party feeling aggrieved of a settlement or decision by
the fiduciary commissioner concerning the accounting may on motion
filed within four months of the settlement or decision appeal the
same to the circuit court.
(c) (d) Any person guardian or conservator who knowingly
violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-
five $100 nor more than one hundred dollars $500.
(e) The parties, attorneys or mental hygiene commissioner
shall report violations of this section, or any other alleged elder
abuse violations, including criminal elder abuse pursuant to
section twenty-nine, article two, chapter sixty-one of this code,
to the Department of Health and Human Resources or county
prosecutor for further investigation and action.
(d) (f) The state auditor West Virginia Supreme Court of
Appeals shall prescribe forms for reports, accountings and
inventories required to be filed pursuant to the provisions of this
article.
ARTICLE 4. TERMINATION, REVOCATION AND MODIFICATION OF
APPOINTMENTS.
§44A-4-1. Termination of appointment of guardian or conservator.
(a) The appointment of a guardian or conservator shall
terminate upon the death, resignation or removal of the guardian or
conservator. or upon the termination of the guardianship or
conservatorship.
(b) The appointment further terminates upon the death of the
protected person. The guardian or conservator shall file the
certified death certificate of the protected person with the
circuit clerk with a final report or accounting.
(c) A guardianship or conservatorship shall terminate whenever
jurisdiction is transferred to another state or if ordered by the
court following a hearing on the petition of any interested person.
(d) In the case of a missing person, a conservatorship shall
terminate when the missing person is located or when the person's
death is established by the production of a certified death
certificate, or the person is presumed dead pursuant to the
provisions of article nine, chapter forty-four of this code.
(e) The court or the mental hygiene commissioner shall prepare
a termination order dismissing the guardianship or conservatorship
case and discharging any bond posted by the guardian or
conservator.
(f) A termination of an appointment does not affect the
liability of a guardian or conservator for prior acts or the
responsibility of a conservator to account for the estate of the
protected person.
§44A-4-5. Duty of guardian or conservator subsequent to death of
protected person.
A guardianship or conservatorship of a protected person shall
terminate upon the death of the protected person: Provided, That
in In the absence of an advanced directive, such as a will, living
will or power of attorney, or preneed burial or cremation contract,
after the death of the protected person, a guardian or a
conservator, if there is no guardian, shall continue to have
authority to make decisions regarding the body of the deceased
protected person for the purposes of authorizing an autopsy and
making funeral arrangements. The guardian's or conservator's
authority shall continue until an executor or executrix or an
administrator or administratrix has been appointed. A guardianship or conservatorship shall terminate whenever jurisdiction is
transferred to another state or if ordered by the court following
a hearing on the petition of any interested person. In the case of
a missing person, a conservatorship shall terminate when the
person's death is established by the production of a certified
death certificate, the person is presumed dead pursuant to the
provisions of article nine, chapter forty-four of this code or the
missing person is located.
The bill (Eng. H. B. No. 3170), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 3278, Relating to the life
and health insurance guaranty association.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Banking and Insurance, were reported by the Clerk, considered
simultaneously, and adopted:
On page twenty, section five, line sixteen, by striking out
the word "article" and inserting in lieu thereof the word
"articles";
On page twenty, section five, line seventeen, after the word
"twenty-four" by inserting the words "and twenty-five";
And,
On page forty-five, section eight, line two hundred fifty-
six, by striking out the words "or otherwise" and inserting in lieu
thereof the words "of the insurer's policyholders, payees or beneficiaries".
The bill (Eng. Com. Sub. for H. B. No. 3278), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3314, Relating to concealed
handgun licensing.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
the Judiciary, were reported by the Clerk, considered
simultaneously, and adopted:
O
n page six, section four, line seventy-six, by striking out
the words "which shall" and inserting in lieu thereof a comma and
the words "including a nationwide criminal background check, in
order to";
On page six, section four, line seventy-eight, by striking out
the word "are" and inserting in lieu thereof the word "is";
On page fourteen, section six-a, lines six and seven, by
striking out all of subdivision (1);
And,
By renumbering the remaining subdivisions.
The bill (Eng. Com. Sub. for H. B. No. 3314), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3336, Continuing early
intervention services to families with developmentally delayed
infants and toddlers but eliminating the cost-free provision.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
The end of today's second reading calendar having been
reached, the Senate returned to the consideration of
Eng. House Bill No. 2981, Relating to primary elections and
nominating procedures of third-party candidates.
On third reading, coming up in deferred order, with an
unreported Judiciary committee amendment pending, and with the
right having been granted on Wednesday, April 8, 2009, for further
amendments to be received on third reading, was again reported by
the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar, with the right to amend on third reading remaining in
effect and with the unreported Judiciary committee pending.
Action as to Engrossed House Bill No. 2981 having been
concluded, the Senate returned to the consideration of
Eng. House Bill No. 2801, Updating language and making
technical changes and clarifications of the West Virginia Board of
Medicine.
On third reading, coming up in deferred order, was again
reported by the Clerk.
At the request of Senator Stollings, unanimous consent was
granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Stollings, the following
amendment to the bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §30-3-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §55-7-26, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-7. Powers and duties of West Virginia Board of Medicine.
(a) The board is autonomous and, in accordance with the
provisions of this article, shall administer and supervise
examinations and determine qualifications of applicants for
licenses to practice medicine and surgery, and to practice podiatry
and to practice as a physician assistant for a physician licensed
under this article, and shall issue licenses to qualified
applicants and shall regulate the professional conduct and
discipline of such individuals. In carrying out its functions, the
board may:
(1) Adopt such regulations rules as are necessary to carry out
the purposes of this article;
(2) Hold hearings and conduct investigations, subpoena
witnesses and documents and administer oaths;
(3) Institute proceedings in the courts of this state to
enforce its subpoenas for the production of witnesses and documents
and its orders and to restrain and enjoin violations of this
article and of any regulations rules promulgated under it;
(4) Employ investigators, attorneys, hearing examiners,
consultants and such other employees as may be necessary, who shall be exempt from the classified service of the Division of Personnel
and who shall serve at the will and pleasure of the board. In
addition, all personnel employed through the Department of Health
and Human Resources on June 30, 2009, to provide services for the
board are hereby transferred to the board effective July 1, 2009.
However, the employment, salary, benefits or position
classification of any person transferred under this section may not
be reduced or diminished by reason of this section. All persons
transferred shall retain their coverage under the classified
service of the Division of Personnel and all matters relating to
job classification, job tenure and conditions of employment shall
remain in force and effect from and after the date of this section,
to the same extent as if this section had not been reenacted.
Also, nothing herein shall prohibit the disciplining or dismissal
of any employee for cause.
(5) Enter into contracts and receive and disburse funds
according to law;
(6) Establish and certify standards for the supervision and
certification of physician assistants;
(7) Authorize medical and podiatry corporations in accordance
with the provisions and subject to the limitations of section
fifteen of this article to practice medicine and surgery or
podiatry through duly licensed physicians or podiatrists; and
(8) Establish a fee, not to exceed $50, for a reciprocal
endorsement; and
(9) (8) Perform such other duties as are set forth in this article or otherwise provided for in this code.
(b) The board shall submit an annual report of its activities
to the Legislature. The report shall include a statistical
analysis of complaints received, charges investigated, charges
dismissed after investigation, the grounds for each such dismissal
and disciplinary proceedings and disposition.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-26. Limiting liability of physicians who render services to
youth camps and programs.
(a) Any person licensed to practice medicine and surgery
pursuant to the provisions of article three, chapter thirty of this
code, or any person licensed to practice medicine and surgery as an
osteopathic physician and surgeon pursuant to the provisions of
article fourteen, chapter thirty of this code or any medical
student, graduate medical student or nurse pursuant to the
provisions of article seven, chapter thirty of this code and
article seven-a of said chapter performing medical services under
the direction of a medical or osteopathic physician licensed to
practice in this state: (1) Who is acting in the capacity of a
volunteer health care provider at any youth camp or program; and
(2) who gratuitously and in good faith prior to the commencement of
the youth camp or program agrees to render emergency care or
treatment to a participant during the youth camp or program, without objection of the camp or program participant, shall not be
held liable for any civil damages as a result of the care or
treatment, or as a result of any act or failure to act in providing
or arranging further medical treatment.
(b) The limitation of liability established by this section
does not apply to acts or omissions constituting gross negligence
or willful and wanton conduct.
(c) For purposes of this section, the provision of lodging,
meals and articles of clothing by a youth camp or program may not
be considered as financial remuneration.
The bill, as just amended, was ordered to third reading.
Having been engrossed, the bill, (Eng. H. B. No. 2801) was
then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2801) passed.
On motion of Senator Stollings, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 2801--A Bill to amend and reenact §30-3-7
of the Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new section, designated §55-7-26, all
relating to
updating language and making technical changes
clarifying that the Board of Medicine is an autonomous board which
may hire its employees at the board's will and pleasure, and
providing for continuation of employment and coverage under the
classified service of the Division of Personnel for current
employees
; and relating to the liability of physicians, osteopathic
physicians, nurses, medical students and graduate medical students
who render services as volunteer health care providers at youth
camps and programs; limiting liability; and providing exceptions.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2801) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 3314, Relating to concealed
handgun licensing
.
Having been read a second time, amended and ordered to third
reading in earlier proceedings today.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3314) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3314) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3314--A Bill to amend and
reenact §61-7-4 and §61-7-6a of the Code of West Virginia, 1931, as
amended, all relating to concealed handgun licensing generally;
clarifying scope of license; clarifying that the investigation
necessary for licensure shall include a nationwide criminal
background check; requiring reissue application to be ruled on
within forty-five days; eliminating social security number from
issued license; related to the honoring of concealed handgun
licenses issued by another state; eliminating requirement that a
person holding a concealed handgun license from a reciprocating
state be a resident of that state and requiring that a potential
reciprocating state's licensure standards be similar to or greater than those of this state.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
On motion of Senator Chafin, the Senate recessed until 5:30
p.m. today.
Upon expiration of the recess, the Senate reconvened.
On motion of Senator Chafin, the Senate recessed for five
minutes for the purpose of holding a meeting of the Committee on
Rules at the rostrum.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, unanimous consent being granted, the
Senate returned to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 5:56 p.m. today:
Eng. Senate Bill No. 445, Removing conservation supervisors'
election certification requirements.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 243, Relating to issuing general obligation bonds.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section four, line fourteen, by striking out
the word "shall" and inserting in lieu thereof the word "may";
On page three, section four, line eighteen, by striking out
the words "or magisterial district";
On page three, section four, line twenty, after the word
"education," by inserting the words "as the case may be, shall,";
On page five, section four, line fifty-three, after the word
"that" by inserting the word "the";
On page five, section four, line fifty-eight, after the word
"that" by inserting the word "the";
On page five, section four, line sixty-two, by striking out
the word "each" and inserting in lieu thereof the word "that";
On page six, section fourteen, line six, after the word "of"
by inserting the word "the";
On page seven, section fourteen, line twenty-five, by striking
out the word "are" and inserting in lieu thereof the words "will
be";
On page eight, section fifteen-a, line one, by striking out
the word "are" and inserting in lieu thereof the words "may be";
On page nine, section sixteen, line seven, after the word
"when" by inserting the word "the";
On page twelve, section nineteen, line seven, by striking out
the words "district or independent school district" and inserting
in lieu thereof the words "county board of education";
On page twelve, section twenty-one, line two, after the word
"bonds" by inserting the words "pursuant to this article";
And,
On page thirteen, section twenty-one, line ten, after the word
"for" by inserting the word "the".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 243, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 243) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 256, Providing additional
requirements for certain property annexation.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, section four-a, lines one through seven, by
striking out subsection (a) in its entirety and inserting in lieu
thereof a new subsection (a), to read as follows:
(a) This section applies to the application of the provisions
of section four of this article for municipalities in any county
that has adopted local impact fees and a countywide zoning
ordinance with designated urban growth boundaries before December
1, 2008.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. Com. Sub. for S. B.
No. 256) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 767, Relating to certain Medicaid program
contracts.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §9-2-9 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 §9-2-9a; and that §9-4-3 of said code be
amended and reenacted, all to read as follows:
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE OF
COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND
RESPONSIBILITIES GENERALLY.
§9-2-9. Secretary to develop Medicaid monitoring and case
management.
(a) The Secretary of the Department of Health and Human
Resources shall:
(1) Develop a managed care system to monitor the services
provided by the Medicaid program to individual clients;
(2) Develop an independent referral service, including the
review of individual cases for abuses of the program; and
(3) Develop a schedule for implementation of the managed care
and independent referral system. The managed care system shall
focus on, but not be limited to, the behavioral health and mental
health services.
(b) In addition thereto, and in accordance with applicable
federal Medicaid laws, the secretary shall prepare recommendations,
to be submitted to the Joint Committee on Government and Finance.
In developing recommendations the secretary shall consider as
options the following:
(1) Review of Medicaid services which are optional under
federal Medicaid law and identification of services to be retained,
reduced or eliminated;
(2) The elimination, reduction or phase-out of: (i) Services
which are not generally available to West Virginia citizens not
covered under the state's Medicaid program; or (ii) services which
are not generally covered under group policies of insurance made
available to employees of employers within the state;
(3) The elimination or reduction of services, or reduction of provider reimbursement rates, for identified services of marginal
utility;
(4) Higher reimbursement rates for primary and preventive
care;
(5) Changes in fee structure, which may include a system of
prospective payments, and may include establishment of global fees
for identified services or diagnoses including maternity care;
(6) Utilization caps for certain health care procedures;
(7) Restriction of coverage for cosmetic procedures;
(8) Identification of excessive use of certain health care
procedures by individuals and a policy to restrict excessive use;
(9) Identification of services which reduce the need for more
costly options for necessary care and retention or expansion of
those programs;
(10) Identification of services for which preauthorization is
a requirement for Medicaid reimbursement;
(11) Recommendations relating to the development of a
demonstration project on long-term care, which demonstration
project may be limited to patients with Alzheimer's Disease;
(12) A policy concerning the department's procedures for
compliance, monitoring and inspection; and
(13) Such other options as may be developed.
(c) The secretary shall utilize in-state health care
facilities for inpatient treatment when such facilities are available. Prior authorization, consistent with applicable federal
law, shall be required for out-of-state inpatient treatment.
(d) The secretary shall report to the Joint Committee on
Government and Finance on the development and implementation of
Medicaid programs that provide incentives to working persons. The
secretary shall consider: Subsidies for low income working
persons; individual or small employer buy-ins to the State Medicaid
Fund; prospective payment systems for primary care physicians in
underserved areas; and a system to improve monitoring of
collections, expenditures, service delivery and utilization.
(e) The secretary shall report quarterly to the Joint
Committee on Government and Finance regarding provider and facility
compliance with federal and state Medicaid laws, including, but not
limited to, the following: The number of inspections conducted
during the previous quarter; description of programs, services and
facilities reviewed; findings; and recommendations for corrections.
(f) The secretary shall, upon federal certification of the
claims management system, ensure that the claims management system
processing Medicaid claims provides:
(1) Detailed quarterly financial reports to the Legislative
Oversight Commission on Health and Human Resources Accountability;
(2) A management reporting system no later than July 1, 2006;
and
(3) Specific utilization data by provider, member eligibility groups and service no later than October 1, 2006.
(g) The secretary shall provide public notice of any proposed
amendment to the state plan for Medicaid or proposed changes to the
reimbursement schedule for Medicaid. The notice shall be filed
with the Secretary of State, for publication in the State Register,
including the text of the proposed amendment and a fiscal note.
The notice shall fix a date, time and place for the receipt of
public comment in the form of written statements and any relevant
documents. The proposed amendment may not be filed for federal
approval until after the close of a thirty-day public comment
period. If the Secretary of the Department of Health and Human
Resources determines a submission or amendment of a proposed
amendment to the state plan for Medicaid or proposed changes to the
reimbursement schedule for Medicaid will have a substantial impact
on services, on benefits, or on payments to providers he or she
may, solely at his or her discretion, convene a public hearing.
When rules are necessary to conform to changes in state or federal
law where no agency discretion as to the substance of the rule is
involved, then the provisions of this subsection shall not apply.
However, if the Department of Health and Human Resources finds an
emergency exists requiring that emergency rules be promulgated
earlier than this subsection would permit, then such emergency
rules together with a statement of the circumstances constituting
the emergency shall be filed with the Secretary of State and a notice of such filing shall be published in the State Register.
Such emergency rules shall become effective upon the approval of
the Secretary of State in accordance with section fifteen-a,
article three, chapter twenty-nine-a of this code, but promulgation
of such emergency rules shall not otherwise waive the department's
obligation to comply with this subsection.
§9-2-9a. Contract procedure for the Medicaid program.
(a) The secretary is authorized to execute a contract to
implement professional health care, managed care, actuarial and
health care-related monitoring, quality review/utilization, claims
processing and independent professional consultant contracts for
the Medicaid program.
(b) The provisions of article three, chapter five-a of this
code do not apply to contracts set out in subsection (a) of this
section:
Provided, That the secretary shall comply with the
requirements set forth in this section.
(c) The secretary shall develop procedures and requirements
for competitive bidding and the awarding of contracts set out in
subsection (a) of this section, which procedures and requirements
shall include, but are not limited to, the following:
(1) Submitting public notice bids;
(2) The general terms and conditions for the contract;
(3) Awarding contracts; and
(4) The description of the commodities and services required for the contract, stated with sufficient clarity to assure that
there is a comprehensive understanding of the contact's scope and
requirements; and
(5) Contract management procedures which will ensure the
assessment of contractor performance and compliance with contract
requirements on a regular basis as appropriate for the specific
contract, and no less frequently than on an annual basis for any
contract awarded pursuant to the provisions of this section.
(d) The awarding of the contract may be based on:
(1) Best value;
(2) Low bid;
(3) Sole source; or
(4) Any other basis the secretary chooses to award or reject
the bid:
Provided, That the secretary shall document the basis of
any decision made pursuant to the provisions of this subsection.
(e) The secretary may employ the services of independent
professional consultants to assist in preparing solicitations or
for the evaluation of any responses to such solicitations:
Provided, That the independent professional consultant, or member
of his or her immediate family, or business with which he or she is
associated, may not have any interest in the profits or benefits of
the contract for which he or she may participate in the preparation
of the solicitation or in the evaluation of the response.
(f) The secretary may terminate any contract with thirty days' prior written notice.
ARTICLE 4. STATE ADVISORY BOARD; MEDICAL SERVICES FUND; ADVISORY
COUNCIL; GENERAL RELIEF FUND.
§9-4-3. Advisory council.
The advisory council, created by chapter one hundred
forty-three, Acts of the Legislature, regular session, 1953, as an
advisory body to the State Medicaid Agency with respect to the
medical services fund and disbursements therefrom and to advise
about health and medical services, is continued so long as the
medical services fund remains in existence, and thereafter so long
as the State Medicaid Agency considers the advisory council to be
necessary or desirable, and it is organized as provided by this
section and applicable federal law and has those advisory powers
and duties as are granted and imposed by this section and elsewhere
by law:
Provided, That the continuation of the advisory council is
subject to a preliminary performance review pursuant to the
provisions of article ten, chapter four of this code, evaluating
the effectiveness and efficiency of the advisory council, to be
conducted during the interim of the Legislature in the year 2006 by
the Joint Committee on Government Operations.
The term of office of those members serving on the advisory
council, on the effective date of the amendments made to this
section by the Legislature during its regular session in the year
1998, shall continue until they are reappointed or replaced in accordance with the provisions of this section.
The advisory council shall consist of not less than nine
members, nor more than
thirteen fifteen members, all but
two four
of whom shall be appointed by the State Medicaid Agency and serve
until replaced or reappointed on a rotating basis. The heads of
the
Public Health and Public Welfare Agencies Bureau of Public
Health and Bureau for Medical Services are members ex officio.
The
cochairs of the Legislative Oversight Commission on Health and
Human Resources Accountability, or their designees, are nonvoting
ex officio members. The remaining members comprising the council
consist of a person of recognized ability in the field of medicine
and surgery with respect to whose appointment the State Medical
Association shall be afforded the opportunity of making nomination
of three qualified persons, one member shall be a person of
recognized ability in the field of dentistry with respect to whose
appointment the State Dental Association shall be afforded the
opportunity of nominating three qualified persons, and the
remaining members shall be chosen from persons of recognized
ability in the fields of hospital administration, nursing and
allied professions and from consumers groups, including Medicaid
recipients, members of the West Virginia Directors of Senior and
Community Services, Labor Unions, Cooperatives and
Consumer-sponsored Prepaid Group Practices Plans.
The council shall meet on call of the state Medicaid Agency.
Each member of the advisory council shall receive reimbursement for
reasonable and necessary travel expenses for each day actually
served in attendance at meetings of the council in accordance with
the state's travel regulations. Requisitions for the expenses
shall be accompanied by an itemized statement, which shall be filed
with the Auditor and preserved as a public record.
The advisory council shall assist the State Medicaid Agency in
the establishment of rules, standards and bylaws necessary to carry
out the provisions of this section and shall serve as consultants
to the State Medicaid Agency in carrying out the provisions of this
section.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 767--A Bill to amend and reenact §9-2-9
of the Code of West Virginia, 1931, as amended; to amend said code
by adding thereto a new section, designated §9-2-9a; and to amend
and reenact §9-4-3 of said code, all relating to the state Medicaid
program; requiring public notice and comment of state plan
amendments prior to submission for federal approval; providing for
public comment; allowing emergency approval of certain rules;
exempting certain contracts for the Medicaid program from the
Division of Purchasing's competitive bid requirements; specifying
contract management requirements; establishing procedures and requirements for awarding contracts; clarifying conflicts of
interest provisions; and expanding membership of the Medicaid
Advisory Board.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 767) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2836, School Innovation
Zones Act.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Wells, Browning and Barnes.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2877, Increasing the
monetary penalties, removing the possibility of incarceration and
adding community service for a minor who misrepresents his or her
age when purchasing alcohol.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Snyder, Minard and Hall.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 3017, Exempting from the
consumers sales and service tax and use tax any sales of donated
clothing or clothing accessories.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the
request of the House of Delegates and receded from its amendments to the bill.
Engrossed Committee Substitute for House Bill No. 3017, as
amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3017) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had returned to the
Senate second reading calendar,
Engrossed Committee Substitute for
House Bill No. 2401.
The Senate again proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2401, Providing for the
expiration of the alternative minimum tax.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 2832, Relating to critical
skills evaluations for students in grades three and eight.
Having been read a second time, amended and ordered to third
reading in earlier proceedings today.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick,
Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo,
Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White,
Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2832) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2832) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2832--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §18-2E-10, relating to critical skills
instructional support programs for students in grades three and
eight; setting forth legislative findings; providing for state
board rules to effectuate section; establishing minimum provisions
of rules; providing condition for promotion for certain students
under certain circumstances; requiring suitable facilities by
county boards; preserving teacher's judgment on student retention
decisions; preserving individualized education plans from effect of
section; providing for county board preparation; requiring an
accurate determination of cost; requiring a determination of the
amount of funds available from other sources; and encouraging
establishment of the programs during summer of 2010.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2832) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Plymale, and by unanimous consent,
the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 2961, Adding two members to
the institutional boards of governors of West Virginia University
and Marshall University based upon race, gender and ethnicity.
Having been read a second time, amended and ordered to third
reading in earlier proceedings today.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost
and Tomblin (Mr. President)--32.
The nays were: Barnes and Sypolt--2.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2961) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2961) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2961--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 said code by
adding thereto a new section, designated §18B-1D-9; to amend and
reenact §18B-2A-1 and §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; 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; and to amend and reenact §29-22-
18 of said code, all relating to the administration of institutions
of higher education in West Virginia generally; requiring training
and development opportunities for members of the Higher Education
Policy Commission, the Council for Community and Technical College
Education and the institutional governing boards; revising criteria
for membership of certain institutional governing boards; requiring
the governor to consider certain factors and seek a certain balance
when appointing members; higher education capital facilities
generally; higher education purchasing generally; capital project planning, financing, management and maintenance; acquisition, sale,
transfer, exchange, lease, conveyance and condemnation of real
property; construction and operation of capital facilities;
collection and use of certain capital fees; establishing in the
State Treasury a special revenue fund known as the Higher Education
Policy Commission Capital Improvement Fund; directing the use of
certain lottery proceeds; establishing in the State Treasury a
capital maintenance fund for each state institution of higher
education; legislative intent; defining terms; systemwide
facilities planning; institution facilities planning; and making
technical changes.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2961) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Kessler, unanimous consent being
granted, the Senate returned to the sixth order of business, which
agenda includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2737, Authorizing the
Administrative Director of the Supreme Court of Appeals to hire
regional or specialized probation officers.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered the vote
as to the passage of the bill.
The vote thereon having been reconsidered,
The question again being on the passage of the bill, the yeas
were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem,
Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills,
Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger,
Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2737) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator Chafin, the Senate recessed for five
minutes.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order, which agenda includes the
making of main motions.
On motion of Senator Bowman, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2767, Changing the
membership of the PEIA Financial Board.
Passed by the Senate on yesterday, Thursday, April 9, 2009,
The bill now being in the possession of the Senate.
On motion of Senator Bowman, the Senate reconsidered the vote
as to the effective date and passage.
The vote thereon having being reconsidered,
On motion of Senator Bowman, the bill (Eng. Com. Sub. for H.
B. No. 2767) was recommitted to the Committee on Government
Organization.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 26, Requesting Joint
Committee on Government and Finance study coal industry tax burden.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Walt Helmick,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator White, from the Committee on Agriculture, submitted
the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Concurrent Resolution No. 73 (originating in the
Committee on Agriculture)--Requesting the Joint Committee on
Government and Finance study the apiculture industry in West
Virginia.
Whereas, Honeybees are essential to the survival of
agriculture by providing for the pollenation of fruit trees,
vegetables and flowers; and
Whereas, Apiarists and apiaries provide for the management and
maintenance of honeybees; and
Whereas, West Virginia's bee-keeping industry has been affected by price competition from imports and complications from
the spread of parasitic mites and colony collapse disorder;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the apiculture industry in West Virginia; and,
be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
C. Randy White,
Chair.
Senator White, from the Committee on Agriculture, submitted
the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Concurrent Resolution No. 74 (originating in the
Committee on Agriculture)--Requesting the Joint Committee on
Government and Finance study the farmers markets of West Virginia.
Whereas, The farmers markets of this state encourage
microbusiness by marketing direct from farmer to consumer and
increasing the local agricultural economy; and
Whereas, The structure of funding support through the West
Virginia Department of Agriculture, the West Virginia University
Extension Service and West Virginia's county commissions has
established markets, roadside stands and agritourism market
opportunities; and
Whereas, Future support and promotion of these markets should
be creative and enhance and increase the production of locally
grown agriculture products; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the farmers markets of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
C. Randy White,
Chair.
Senator Prezioso, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
Senate Concurrent Resolution No. 75 (originating in the
Committee on Health and Human Resources)--Requesting the Joint
Committee of Government and Finance study drug diversion and
unintentional pharmaceutical drug overdoses.
Whereas, There has been a marked increase nationwide in the
use and abuse of prescription narcotic drugs since 1990. The
effect of this pharmacoepidemic is most prominent in rural areas;
and
Whereas, West Virginia has, in fact, experienced the largest
increase in drug overdose mortality rates in the nation between the
years 1999 and 2004; and
Whereas, The majority of overdose deaths in West Virginia in
2006 were associated with nonmedical use and diversion of prescription drugs, primarily prescription narcotic
pharmaceuticals; and
Whereas, Prescription drug diversion drains health insurers
nationally of up to $72.5 billion a year. These costs include
costs for insurance schemes and costs for treatment for abuse.
There are also considerable costs to the state; and
Whereas, There is a need for a process to study the causes of
the use of fraudulent prescriptions and unintentional
pharmaceutical drug overdose fatalities that have occurred in West
Virginia; and
Whereas, It is the intent of the Legislature to obtain input
from government agencies, medical organizations and other entities
that it is determined would be beneficial to the discussions to the
study of fraudulent prescriptions and unintentional pharmaceutical
drug overdoses; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study drug diversion and unintentional pharmaceutical
drug overdoses; and, be it
Further Resolved, That in exploring solutions, the Joint
Committee on Government and Finance should consider the feasibility
of an official prescription program that could implement tamper
prescription pads, which are already required for use by Medicaid,
and the feasability of an Unintentional Pharmaceutical Drug Overdose Fatality Review Team to review deaths caused by
prescription drugs; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
And,
Senate Concurrent Resolution No. 76 (originating in the
Committee on Health and Human Resources)--Requesting the Joint
Committee on Government and Finance study the effectiveness of the
myriad of legislative initiatives available to the citizens of this
state to assist them in obtaining health care services either
through health insurance options or low-cost health care programs.
Whereas, The Governor and the Legislature have crafted a
number of programs in recent years that are designed to improve
access to health care to the citizens of West Virginia; and
Whereas, The initiatives have included prepaid preventive care
programs, expanding eligibility criteria for the Children's Health
Insurance Program, creating low-cost health insurance options and creating, expanding and funding health care programs for targeted
segments of the population; and
Whereas, Access to health care in West Virginia, the quality
of health care received and the costs of the care continue to be
issues facing the citizens of the state, the Legislature and the
Governor; and
Whereas, In addition to efforts recently made by the
Legislature to reform the delivery of health care in the state, a
study of current available options and how they interact with one
another in terms of their keys to success has never been undertaken
and may provide insight into potential expansion and greater
funding to greater insure access to health care; and
Whereas, The lesson of these programs may hold clues to the
success of future ventures and give the Legislature and the
Governor purpose in developing strategies to addressing the health
care delivery system in West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the effectiveness of the myriad of legislative
initiatives available to the citizens of this state to assist them
in obtaining health care services either through health insurance
options or low-cost health care programs; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that they
each be adopted; but with the further recommendation that they
first be referred to the Committee on Rules.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
On motion of Senator Prezioso, the resolutions (S. C. R. Nos.
75 and 76) contained in the preceding report from the Committee on
Health and Human Resources were referred to the Committee on Rules.
Senator Minard, from the Committee on Banking and Insurance,
submitted the following report, which was received:
Your Committee on Banking and Insurance has had under
consideration
Senate Concurrent Resolution No. 77 (originating in the
Committee on Banking and Insurance)--Requesting the Joint Committee
on Government and Finance study existing West Virginia law relating
to the current mortgage crisis and its impact on the citizens of West Virginia and our financial institutions.
Whereas, The current mortgage crisis has caused a significant
increase in mortgage delinquencies and a growth in the number of
real estate foreclosures in the United States; and
Whereas, This crisis not only threatens major adverse
consequences for homeowners as well as banks and other lending
institutions, but further threatens damage to broader financial
markets in this country and around the world; and
Whereas, This financial crisis became apparent in 2007 and has
exposed a number of pervasive weaknesses in the control, governance
and regulation of the banking and financial industry in this
country and in the world financial system; and
Whereas, A significant percentage of mortgages issued in the
United States in recent years to borrowers have been "subprime" or
other types of adjustable-rate mortgages; and
Whereas, The values of housing in the United States have
declined dramatically in some parts of the country since 2006-2007
and are continuing to fall, while a refinancing of debt by
homeowners with adjustable-rate mortgages has become either
difficult or impossible; and
Whereas, The interest rates applied to adjustable-rate
mortgages have been reset and have climbed to increasingly higher
levels, causing the number of mortgage delinquencies to rise; and
Whereas, Securities backed with subprime or other adjustable-rate mortgages, widely held by financial firms, have
continued to lose value; and
Whereas, The end result of these conditions has been a decline
in the value of real property, a devaluation of capital and a loss
of access to available credit in this country and around the world
therefore; be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance study
existing West Virginia law relating to the current mortgage crisis
and its impact on the citizens of West Virginia and our financial
institutions; and, be it
Further Resolved, That the Joint Committee on Government and
Finance is requested to study the impact and effects of the current
mortgage crisis specific to West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance is hereby requested to study the financial health of
lending institutions in the state; and, be it
Further Resolved, That the Joint Committee on Government and
Finance is hereby requested to study the availability of consumer
credit in the state; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Joseph M. Minard,
Chair.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 78 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance study school personnel employment and
retention, professional and skills development, pay for performance
models and incentive programs generally, teacher evaluations and
how each affects student performance.
Whereas, The quality of school personnel, especially
professional educators, is more important than any other
controllable factor in the academic performance of students; and
Whereas, The quality of school personnel also is an important
factor in providing for the health and safety of students; and
Whereas, The state should continuously strive to enhance the
quality of school personnel as a means to achieve the ultimate
goals of improving the academic performance of students and
providing for the health and safety of students; and
Whereas, School personnel employment and retention,
professional and skills development, pay for performance models and
incentive programs generally and teacher evaluations are important
issues to consider when determining how to best enhance the quality
of school personnel; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study school personnel employment and retention,
professional and skills development, pay for performance models and
incentive programs generally, teacher evaluations and how each
affects student performance; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
On motion of Senator Plymale, the resolution (S. C. R. No. 78)
contained in the preceding report from the Committee on Education
was referred to the Committee on Rules.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 79 (originating in the
Committee on Transportation and Infrastructure)--Requesting the
Joint Committee on Government and Finance study the issues related
to the timing of the cessation of the West Virginia turnpike tolls,
the related prohibitions or restrictions on the issuance of
additional revenue bonds for the West Virginia Turnpike and the
payment provisions for the same.
Whereas, The continued collection of tolls for transit over
the West Virginia Turnpike has for many years caused a significant
adverse economic impact on many motorists, especially those who
reside in the economically disadvantaged areas in the southern part of this state; and
Whereas, The need for the continued collection of these
Turnpike tolls until the currently scheduled cessation date in the
year 2019 is not definitely clear, especially considering that the
various revenue bonds issued by the West Virginia Parkways,
Economic Development and Tourism Authority and dedicated to the
West Virginia Turnpike may be fully paid prior to that year; and
Whereas, The mountainous terrain that the West Virginia
Turnpike traverses makes it quite expensive to conduct the vital
improvement and repair and maintenance projects on that important
highway serving both interstate and intrastate motorists;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study issues related to the timing of the cessation of
the West Virginia turnpike tolls, the related prohibitions or
restrictions on the issuance of additional revenue bonds for the
West Virginia Turnpike and the payment provisions for the same;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance may obtain relevant information from any experts or from
other sources to facilitate this study; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
Senate Concurrent Resolution No. 80 (originating in the
Committee on Transportation and Infrastructure)--Requesting the
Joint Committee on Government and Finance study the issues related
to greater access to wireless towers by competing wireless
telephone carriers.
Whereas, Current state law promotes the construction of
wireless towers in remote areas of this state to provide enhanced
access to emergency services by the use of wireless telephones; and
Whereas, Each of the private wireless telephone carriers tends
to be very reluctant to provide access to wireless towers, in
remote areas of the state especially, to competing wireless
telephone carriers even though public funds have subsidized the
construction cost of those towers; and
Whereas, For wireless towers built and maintained with some
public funds, the Legislature, the West Virginia Public Service
Commission and other appropriate public bodies are entitled to have
access to the fee arrangements and other relevant written agreements between the county commissions and the private wireless
telephone carriers for the use by the carriers of those towers; and
Whereas, Even for wireless towers not subsidized by public
funds, the public in certain circumstances has a reasonable
interest in greater cooperation among private wireless telephone
carriers with respect to providing access to wireless towers to
competing carriers, for example if exclusive access results in very
poor customer service or clearly exorbitant rates; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the issues related to greater access to wireless
towers by competing wireless telephone carriers; and, be it
Further Resolved, That the Joint Committee on Government and
Finance may obtain relevant information from any experts or from
other sources to facilitate this study; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
And,
Senate Concurrent Resolution No. 81 (originating in the
Committee on Transportation and Infrastructure)--Requesting the
Joint Committee on Government and Finance study the issues related
to the quality and durability of materials or supplies furnished
for state road or bridge purposes.
Whereas, Current state law, such as section twenty-three,
article four, chapter seventeen of the Code of West Virginia, 1931,
as amended, requires a person who sells paint, metal or metal
culverts, fence or any other materials or supplies to the West
Virginia Division of Highways for state road or bridge purposes to
certify, if requested, the purity, chemical constituents and the
percentage of impurities contained in the materials or supplies;
and
Whereas, Current state law, such as section twenty-four,
article four, chapter seventeen of the Code of West Virginia, 1931,
as amended, requires the Commissioner of the West Virginia Division
of Highways to test, standardize and approve in writing all
materials or supplies that are used in the construction,
reconstruction, improvement, repair or maintenance of state roads;
and
Whereas, The overall quality or durability of paint or other
materials or supplies used for state road or bridge purposes
appears, from time to time, to have deteriorated; and
Whereas, The amount of moneys available for public highway and
bridge materials and supplies clearly affects the quality and
durability of those items; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the issues related to the quality and durability
of materials or supplies furnished for state road or bridge
purposes; and, be it
Further Resolved, That the Joint Committee on Government and
Finance should also study the principal causes of and solutions for
the problem, including any need for additional funds for these
materials and supplies; and, be it
Further Resolved, That the Joint Committee on Government and
Finance may obtain relevant information from any experts or from
other sources to facilitate this study; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
And reports the same back with the recommendation that they
each be adopted; but with the further recommendation that they
first be referred to the Committee on Rules.
Respectfully submitted,
John R. Unger II,
Chair.
On motion of Senator Unger, the resolutions (S. C. R. Nos. 79,
80 and 81) contained in the preceding report from the Committee on
Transportation and Infrastructure were referred to the Committee on
Rules.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2535, Creating a tax credit
for certain solar energy systems.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2535) contained in
the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2885, Establishing a uniform
credentialing form and creating a single credentialing verification
organization (CVO).
With amendments from the Committee on Banking and Insurance
pending;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Banking and Insurance to which
the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2885) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 3195, Establishing a funding
mechanism for state aid for local health departments.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 8, 2009;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3197, Authorizing municipalities to permit
nonpolice officers to issue citations for littering.
With amendments from the Committee on Government Organization
pending;
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 8, 2009;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Government Organization to
which the bill was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 10, The "T-5 Leon Whitlock and
PFC Forrest Wilson Memorial Bridge" and the "SFC Stanley Williams
Memorial Bridge".
House Concurrent Resolution No. 12, The "Sebert S. Duty
Memorial Bridge".
House Concurrent Resolution No. 14, The "Corporal William Dely
Memorial Bridge".
House Concurrent Resolution No. 16, The "Willis W. Elkins
Memorial Bridge".
House Concurrent Resolution No. 17, The "War Veterans of
Mercer County Memorial Bridge".
House Concurrent Resolution No. 18, The "Chief Master Sergeant
George Wallace Hedrick, Jr, Bridge".
House Concurrent Resolution No. 19, Requesting the Division of
Highways to rename Guy Gillenwater Hollow to "Heritage Road".
House Concurrent Resolution No. 20, Requesting the Division of
Highways add to the signage on bridge number O6-O2-0.10, in Cabell
County, adding "Green Beret" above "Sgt. Jackie L. Waymire Memorial
Bridge" and "Recipient of DSC KIA Vietnam 1967" below.
House Concurrent Resolution No. 21, The "Staff Sgt. Jeremy Alexander Brown Memorial Bridge".
House Concurrent Resolution No. 22, The "Buffalo Creek
Memorial Highway".
House Concurrent Resolution No. 25, Requesting that the
Division of Highways relocate the marker known as the Washington
Lands Marker in Moundsville.
House Concurrent Resolution No. 28, The "Sgt. Daniel Pesimer
Memorial Bridge Killed in Vietnam, 1968".
House Concurrent Resolution No. 29, The "Arden Cogar, Sr.
Bridge".
House Concurrent Resolution No. 31, The "Airman First Class
Christopher Burns Lester Memorial Bridge".
House Concurrent Resolution No. 39, The "Clair Bee: Basketball
Coach and Author Memorial Bridge".
House Concurrent Resolution No. 44, The "SFC Jaime Scott
Nicholas Memorial Highway".
House Concurrent Resolution No. 45, The "Bob Basil Memorial
Bridge".
House Concurrent Resolution No. 47, The "PFC Ronald 'Ronnie'
Dean, USMC, Memorial Bridge".
And,
House Concurrent Resolution No. 75, The "Pearl Harbor: PFC
Carey K. Stockwell Memorial Bridge".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 575, Relating
to gaming operations at historic resort hotel.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §29-22-29; that §29-25-
1, §29-25-2, §29-25-3, §29-25-5, §29-25-6, §29-25-8, §29-25-9, §29-
25-11, §29-25-12, §29-25-13, §29-25-16, §29-25-17, §29-25-18, §29-
25-19, §29-25-20, §29-25-21, §29-25-22, §29-25-23, §29-25-24, §29-25-25 and §29-25-26 of said code be amended and reenacted; and that
said code be amended by adding thereto twelve new sections,
designated §29-25-22a, §29-25-28, §29-25-29, §29-25-30, §29-25-31,
§29-25-32, §29-25-33, §29-25-34, §29-25-35, §29-25-36, §29-25-37
and §29-25-38, all to read as follows:
ARTICLE 22. STATE LOTTERY ACT.
§29-22-29. Moneys transferred or allocated to nongovernmental
entities are state moneys and have been so in the
past; right to audit state moneys transferred to
nongovernmental entities.
(a) Moneys transferred by the commission under provisions of
this article and articles twenty-two-a, twenty-two-b, twenty-two-c
and twenty-five of this chapter to nongovernmental recipients, are
state moneys and have been state moneys in prior fiscal periods.
(b) All nongovernmental entities that have received state
moneys as described in subsection (a) of this section are subject
to audit by the commission. An audit provided for by this section
may be conducted by employees or agents of the commission. An
audit provided for by this section may also be conducted by the
Legislative Auditor.
ARTICLE 25. AUTHORIZED GAMING FACILITY.
§29-25-1. Authorization of limited gaming facility; findings;
intent.
(a)
Operation of authorized games of chance West Virginia Lottery table games. -- Notwithstanding any provision of law to the
contrary, the operation of West Virginia lottery games permitted by
this article and the related operation of a gaming facility and
ancillary activities is not unlawful when conducted under the terms
specified in this article and article twenty-two-c of this chapter.
(b)
Legislative findings. -- The Legislature finds and
declares that the tourism industry plays a critical role in the
economy of this state and that a substantial state interest exists
in protecting that industry. It further finds and declares that the
authorization of the operation of a gaming facility at no more than
one well-established historic resort hotel in this state as
provided in this article will serve to protect and enhance the
tourism industry, and indirectly other segments of the economy of
this state, by providing a resort hotel amenity which is becoming
increasingly important to many actual and potential resort hotel
patrons.
The Legislature finds and declares that video lottery
operations pursuant to
subsection (c), section
three twenty-eight
of this article and the operation of the other
authorized West
Virginia Lottery table games permitted by this article constitute
the operation of lotteries within the purview of section thirty-
six, article VI of the Constitution of West Virginia.
(c)
Legislative intent. -- It is the intent of the Legislature
in the enactment of this article to promote tourism and year-round employment in this state. It is expressly not the intent of the
Legislature to promote gaming. As a consequence, it is the intent
of the Legislature to allow limited gaming as authorized by this
article and article twenty-two-c of this chapter with all moneys
gained from the operation of the gaming facility, other than those
necessary to reimburse reasonable costs of operation, to inure to
the benefit of the state.
Further, it is the intent of the
Legislature that amendments made to this article during the 2009
regular session will establish appropriate conformity between the
operations of video lottery and West Virginia Lottery table games
at the licensed gaming facility under this article and the
operations of video lottery and table games at the pari-mutuel
racetracks licensed under articles twenty-two-a and twenty-two-c of
this chapter.
§29-25-2. Definitions.
As used in this article, unless the context otherwise
requires, the following words and phrases have meanings indicated:
(a) "Applicant" means any person or entity applying for a
license.
(b) "Adjusted gross receipts" means the gross receipts of a
gaming facility from
authorized games of chance West Virginia
Lottery table games less winnings paid to wagerers in
the such
games.
(c) "Authorized game of chance" includes means baccarat, twenty-one or blackjack, poker, craps, roulette, wheel of fortune,
video lottery games and any other Monte Carlo style table game
expressly authorized by rule of the commission, but expressly
excludes punchboard, faro, keno, numbers ticket, push card, jar
ticket, pull tab or similar games.
(c) "Annual average gross receipts of the pari-mutuel
racetracks with table games licenses" means the amount obtained by
adding the adjusted gross receipts of all West Virginia pari-mutuel
racetracks with table games licenses and then dividing that
calculation by the number of West Virginia pari-mutuel racetracks
with table games licenses.
(d) "Background investigation" means a security, criminal and
credit investigation of an applicant who has applied for the
issuance or renewal or a license pursuant to this article or a
licensee who holds a current license.
(d) (e) "Controlling interest" means:
(1) For a partnership, an interest as a general or limited
partner holding more than
fifty five percent interest in the
entity;
(2) For a corporation, an interest of more than
fifty five
percent of the stock in the corporation; and
(3) For any other entity, an ownership interest of more than
fifty five percent in the entity.
(e) (f) "Controlling person" means, with respect to another person, any person directly or indirectly owning or holding a
controlling interest in that other person.
(f) (g) "Commission" means the State Lottery Commission
created in section four, article twenty-two of this chapter.
(h) "Designated gaming area" means one or more specific floor
areas of a licensed gaming facility within which the commission has
authorized operation of video lottery terminals or West Virginia
Lottery table games, or the operation of both video lottery
terminals and West Virginia Lottery table games.
(g) (i) "Director" means the Director of the State Lottery
Commission.
(j) "Erasable programmable read-only memory chips" or "EPROM"
means the electronic storage medium on which the operation software
for all games playable on a video lottery terminal resides and can
also be in the form of CD ROM, flash ROM or other new technology
medium that the commission may from time to time approve for use in
video lottery terminals. All electronic storage media are
considered to be property of the State of West Virginia.
(k) "Fringe benefits" means sickness and accident benefits and
benefits relating to medical and pension coverage.
(h) (l) "Gaming devices and supplies" mean gaming tables for
all
authorized games of chance West Virginia Lottery table games,
roulette wheels, wheels of fortune, video lottery terminals, cards,
dice, chips, tokens, markers or any other mechanical, electronic or other device, mechanism or equipment or related supplies utilized
in the operation of
an authorized game of chance a West Virginia
Lottery table game.
(i) (m) "Gaming facility" means a designated area on the
premises of an
existing historic resort hotel in which
authorized
games of chance West Virginia Lottery table games are conducted by
a gaming licensee.
(j) (n) "Gaming licensee" means the licensed operator of a
gaming facility.
(k) (o) "Gross receipts" means the total amount of money
exchanged for the purchase of chips, tokens or electronic cards by
patrons of a gaming facility reduced by gross terminal income to
the
extend extent gross terminal income is included in the amount
of money exchanged.
(l) (p) "Gross terminal income,"
has the same meaning ascribed
to the term as set forth in article twenty-two-a of this chapter as
used in this article and as used in article twenty-two-a of this
chapter, means the total amount of cash, vouchers or tokens
inserted into the video lottery terminals operated by a licensee,
minus promotional credits played, and minus the total value of
coins and tokens won by a player and game credits which are cleared
from the video lottery terminals in exchange for winning redemption
tickets.
(m) (q) "Historic resort hotel" means a resort hotel registered with the United States Department of the Interior as a
national historic landmark in its National Registry of Historic
Places having not fewer than five hundred guest rooms under common
ownership and having substantial recreational guest amenities in
addition to the gaming facility.
(s) "State gaming (r) "Historic Resort Hotel Fund" means the
special fund in the State Treasury created in section twenty-two of
this article.
(s) "Human Resource Benefit Fund" means the special fund in
the State Treasury created in section twenty-two-a of this article.
(t) "Human Resource Benefit Advisory Board" or "board" means
the advisory board created in section twenty-two-a of this article.
(n) (u) "License" means a license issued by the commission,
including:
(1) A license to operate a gaming facility;
(2) A license to supply gaming devices and supplies to a
gaming facility;
or
(3) A license to be employed in connection with the operation
of a gaming facility;
or
(4) A license to provide management services under a contract
to a gaming facility under this article.
(o) (v) "Licensed gaming facility employee" means any
individual licensed to be employed by a gaming licensee in
connection with the operation of a gaming facility.
(p) (w) "Licensed gaming facility supplier" means a person who
is licensed by the commission to engage in the business of
supplying gaming devices and gaming supplies to a gaming facility.
(q) (x) "Licensee" means a gaming licensee, a licensed gaming
facility supplier or a licensed gaming facility employee.
(y) "Manufacturer" means any person holding a license granted
by the commission to engage in the business of designing, building,
constructing, assembling or manufacturing video lottery terminals,
the electronic computer components of the video lottery terminals,
the random number generator of the video lottery terminals, or the
cabinet in which it is housed, and whose product is intended for
sale, lease or other assignment to a licensed gaming facility in
West Virginia and who contracts directly with the licensee for the
sale, lease or other assignment to a licensed gaming facility in
West Virginia.
(z) "Net terminal income" means gross terminal income minus an
amount deducted by the commission to reimburse the commission for
its actual cost of administering video lottery at the licensed
gaming facility. No deduction for any or all costs and expenses of
a licensee related to the operation of video lottery games shall be
deducted from gross terminal income.
(r) (aa) "Person" means any natural person, corporation,
association, partnership, limited partnership, limited liability
company or other entity, regardless of its form, structure or nature.
(bb)"Premises of an existing historic resort hotel" means the
historic resort hotel, attachments of the historic resort hotel and
the traditional, immediate grounds of the historic resort hotel.
(cc) "Promotional credits" means credits given by the licensed
gaming facility or licensed racetrack to players allowing limited
free play of video lottery terminals in total amounts and under
conditions approved in advance by the commission.
(t) (dd) "Video lottery
games game,"
and video lottery
terminals" shall have the same meaning ascribed the terms in
article twenty-two-a of this chapter as used in this article and as
used in article twenty-two-a of this chapter, means a commission-
approved, -owned and -controlled electronically simulated game of
chance which is displayed on a video lottery terminal and which:
(1) Is connected to the commission's central control computer
by an online or dial-up communication system;
(2) Is initiated by a player's insertion of cash, vouchers or
tokens into a video lottery terminal, which causes game play
credits to be displayed on the video lottery terminal and, with
respect to which, each game play credits entitles a player to
choose one or more symbols or numbers or to cause the video lottery
terminal to randomly select symbols or numbers;
(3) Allows the player to win additional game play credits,
coins or tokens based upon game rules which establish the random selection of winning combinations of symbols or numbers or both and
the number of free play credits, coins or tokens to be awarded for
each winning combination of symbols or numbers or both;
(4) Is based upon a computer-generated random selection of
winning combinations based totally or predominantly on chance;
(5) In the case of a video lottery game which allows the
player an option to select replacement symbols or numbers or
additional symbols or numbers after the game is initiated and in
the course of play, either:
(A) Signals the player, prior to any optional selection by the
player of randomly generated replacement symbols or numbers, as to
which symbols or numbers should be retained by the player to
present the best chance, based upon probabilities, that the player
may select a winning combination;
(B) Signals the player, prior to any optional selection by the
player of randomly generated additional symbols or numbers, as to
whether such additional selection presents the best chance, based
upon probabilities, that the player may select a winning
combination; or
(C) Randomly generates additional or replacement symbols and
numbers for the player after automatically selecting the symbols
and numbers which should be retained to present the best chance,
based upon probabilities, for a winning combination, so that in any
event, the player is not permitted to benefit from any personal skill, based upon a knowledge of probabilities, before deciding
which optional numbers or symbols to choose in the course of video
lottery game play;
(6) Allows a player at any time to simultaneously clear all
game play credits and print a redemption ticket entitling the
player to receive the cash value of the free plays cleared from the
video lottery terminal; and
(7) Does not use the following game themes commonly associated
with casino gambling: Roulette, dice or baccarat card games:
Provided, That games having a display with symbols which appear to
roll on drums to simulate a classic casino slot machine, game
themes of other card games and keno may be used.
(ee) "Wager" means a sum of money or thing of value risked on
an uncertain occurrence.
(ff) "West Virginia Lottery table game" means any game played
with cards, dice or any mechanical, electromechanical or electronic
device or machine for money, credit or any representative of value,
including, but not limited to, baccarat, blackjack, poker, craps,
roulette, wheel of fortune or any variation of these games similar
in design or operation and expressly authorized by rule of the
commission, including multiplayer electronic table games, machines
and devices, but excluding video lottery, punchboards, faro,
numbers tickets, push cards, jar tickets, pull tabs or similar
games.
§29-25-3. Commission duties and powers.
(a)
Duties. -- In addition to the duties set forth elsewhere
in this article, the commission shall:
(1) Establish
minimum standards for gaming devices and
supplies, including electronic or mechanical gaming devices;
(2) Approve,
modify or reject game rules
of play for all
authorized games of chance West Virginia Lottery table games
proposed to be operated by a gaming licensee;
(3)
Establish standards governing gaming facilities generally,
Approve, modify or reject minimum internal control standards
proposed by the licensee gaming facility for a West Virginia
Lottery table game, including the maintenance of financial books
and records;
(4) Provide staff to supervise, inspect and monitor the
operation of any gaming facility, including inspection of gaming
devices and supplies used in the operation to assure continuous
compliance with all rules of the commission and provisions of this
article;
(5) Establish minimum levels of insurance to be maintained
with respect to a gaming facility;
(6) Investigate applicants to determine eligibility for any
license and, where appropriate, select among competing applicants;
(7) Designate appropriate classifications of personnel to be
employed in the operation of a gaming facility and establish appropriate licensing standards within the classifications;
(8) Issue all licenses;
(9) Charge and collect the taxes and fees authorized, required
or specified in this article:
and receive, accept and pay taxes and
fees collected under this article into the state gaming fund
(i) Receive, accept and pay the specified percentage of taxes
collected under sections twenty and twenty-one of this article into
the Historic Resort Hotel Fund; and
(ii) Receive, accept and pay the specified percentage of taxes
collected under sections twenty and twenty-one of this article into
the Human Resource Benefit Fund;
(10) Maintain a record of all licenses issued;
(11) Keep a public record of all commission actions and
proceedings; and
(12) File a written annual report to the Governor, the
President of the Senate and the Speaker of the House of Delegates
on or before January 30 of each year and any additional reports as
the Governor or Legislature may request.
(b)
Powers. -- In addition to the powers set forth elsewhere
in this article, the commission has the following powers:
(1) To sue to enforce any provision of this article by
injunction;
(2) To hold hearings, administer oaths and issue subpoenas for
the attendance of a witness to testify and to produce evidence;
(3) To enter a gaming facility at any time and without notice
to ensure strict compliance with the rules of the commission;
(4) To bar, for cause, any person from entering or
participating in any capacity in the operation of a gaming
facility; and
(5) To exercise such other powers as may be necessary to
effectuate the provisions of this article.
(c) Video lottery games. -- The commission is authorized to
implement and operate video lottery games at the gaming facility
licensed pursuant to this article consistent with the gaming
licensee's operation of the gaming facility. With respect to video
lottery games the provisions of article twenty-two-a of this
chapter apply to this article, except in the event of a conflict or
inconsistency between any of the provisions of this article and the
provisions of article twenty-two-a of this chapter. In that event,
the provisions of this article shall supersede any conflicting or
inconsistent provisions contained in article twenty-two-a of this
chapter. In carrying out its authority hereunder, the commission
may: (1) Specify by rule additional licensure and fee requirements
consistent with the provisions of article twenty-two-a respecting
video lottery manufacturers, service technicians and validation
managers; and (2) adopt and specify any reasonable procedure,
protocol or requirement to enable video lottery terminals to
effectively and efficiently communicates with the commission's central computer system used in administering article twenty-two-a
of this chapter.
§29-25-5. Rules.
The commission shall propose for promulgation legislative
rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code as are necessary to provide for
implementation and enforcement of the provisions of this article.
Any
legislative rules proposed by the commission before September
one thousand nine hundred ninety-nine 1, 2009, may be by emergency
rule.
§29-25-6. Law enforcement.
(a)
Generally. -- Notwithstanding any provision of this code
to the contrary, the
director may commission shall, by contract or
cooperative
agreements, with state, county or municipal law
enforcement agencies operating in the county in which the gaming
facility is located arrange for such law enforcement services as
agreement with the West Virginia State Police, arrange for those
law-enforcement services uniquely related to gaming as such occurs
at the gaming facility that are necessary to enforce the provisions
of this article.
(b)
Costs. -- The actual cost of services provided by the
State Police or municipal law enforcement agencies in connection
with enforcement of the provisions of this article West Virginia
State Police pursuant to a contract or cooperative agreement entered into pursuant to the provisions of subsection (a) of this
section, including, but not limited to, necessary training costs,
shall be paid
from the state gaming fund, which cost shall include
all costs of required training and equipment as well as salary,
benefits and other direct costs of additional required personnel by
the commission as an administrative expense.
The costs of services related to a gaming facility provided by
law-enforcement officers of the county in which such gaming
facility is located shall be paid from that portion of the state
gaming fund allocated to such county. The costs shall include all
costs of required training and equipment as well as salary,
benefits and other direct costs of additional personnel.
(c) Notwithstanding any provision of this code to the
contrary, the West Virginia State Police shall have exclusive
jurisdiction over felony offenses committed on the grounds of the
gaming facility.
§29-25-8. Licenses required.
(a) No person may engage in any activity in connection with a
gaming facility in this state for which a license is required by
subsection (b) of this section unless that person has been licensed
by the commission in accordance with this article.
(b) Licenses are required for the following purposes:
(1) For any person engaging in the business of operating a
gaming facility in the state;
(2) For any person engaging in the business of supplying a
gaming facility with gaming devices,
gaming supplies or
gaming
services;
if the gaming facility expends more than fifty thousand
dollars annually with such person; and
(3) For any individual employed by a gaming licensee in
connection with the operation of a gaming facility in the state;
and
(4) For any person providing management services under a
contract to a gaming facility.
(c) Any license required under this article is in addition to
all other licenses or permits otherwise required by law.
§29-25-9. License to operate a gaming facility.
(a)
Single license. -- The commission may issue only one
license to operate a gaming facility. If the one license limitation
in the preceding sentence is found to be unconstitutional in a
final, nonappealable order by a court of competent jurisdiction,
the commission shall have no authority to issue any license under
this article and, in such event, the provisions of this article
shall not be severable and any license issued under the provisions
of this article prior thereto shall be void. The Legislature
intends that no more than one license to operate one gaming
facility in this state shall be authorized in any event.
(b)
Applicant qualifications. -- An The applicant
for a
license to operate a gaming facility shall be the
owner or be wholly owned by the owner of an existing actual operator of the
gaming facility to be located on the premises of an existing
historic resort hotel
in which the gaming facility is to be
located, and the The applicant may be the owner of the existing
historic resort hotel or a person that leases well-defined spaces
on the premises of the historic resort hotel in order to operate a
gaming facility as defined by this article. The resort hotel shall
be located within the jurisdiction of a county approving the
operation of a gaming facility in accordance with section seven of
this article.
An The applicant shall meet the qualifications and
requirements set forth in this article and rules adopted by the
commission. In determining whether to grant a license to operate a
gaming facility to an applicant, the commission shall consider:
(1) The character, reputation, experience and financial
integrity of the applicant and any controlling person of the
applicant;
(2) Whether the applicant has adequate capital to construct
and maintain the proposed gaming facility for the duration of a
license;
(3) The extent to which the applicant meets standards
contained in rules adopted by the commission relating to public
safety or other standards; and
(4) The plan submitted by the applicant regarding employment
levels and the extent to which the submitted plan demonstrates an ability on the part of the applicant to create at least one hundred
full-time equivalent jobs with a salary and benefit package
commensurate with existing employees at the historic resort hotel.
(c)
Conditions attached to license. -- A license to operate a
gaming facility may only be granted to an applicant upon the
express condition that: Floor plan submission requirement. --
Prior to commencing the operation of any West Virginia Lottery
table game in a designated gaming area, the gaming facility
licensee shall submit to the commission for its approval a detailed
floor plan depicting the location of the designated gaming area in
which West Virginia Lottery table game gaming equipment will be
located and its proposed arrangement of the West Virginia Lottery
table game gaming equipment. If the floor plans for the designated
gaming area preserve the historic integrity of the historic resort
hotel where the licensed gaming facility is located, then any floor
plan submission that satisfies the requirements of the rules
promulgated by the commission shall be considered approved by the
commission unless a gaming facility is notified in writing to the
contrary within one month of filing a detailed floor plan.
(1) The licensee may not enter into any management service
contract, understanding or arrangement of any kind which would act
to permit any person other than the licensee to operate a licensed
gaming facility unless the management service contract,
understanding or arrangement is in writing and has been approved by the commission, which approval shall be conditioned upon successful
completion of a thorough background investigation at the expense of
the licensee;
(2) The licensee may not in any manner permit a person other
than the licensee to have a share, percentage or proportion of any
profits generated from the operation of a gaming facility;
(3) The licensee may not in any manner permit a person other
than the licensee to have a share, percentage or proportion of any
profits generated from the operation of the gaming facility without
the prior written approval of the director of the Lottery
Commission; and,
(4) The licensee shall permit authorized games of chance to be
played only during those hours established and approved by the
commission.
(d) Management service contracts. --
(1) Approval. -- A gaming facility may not enter into any
management service contract that would permit any person other than
the licensee to act as the commission's agent in operating West
Virginia Lottery table game unless the management service contract:
(A) Is with a person licensed under this article to provide
management services; (B) is in writing; and (C) the contract has
been approved by the commission.
(2) Material change. -- A licensed gaming facility shall
submit any material change in a management service contract previously approved by the commission to the commission for its
approval or rejection before the material change may take effect.
(3) Prohibition on assignment or transfer. -- A management
services contract may not be assigned or transferred to a third
party.
(4) Other commission approvals and licenses. -- The duties and
responsibility of a management services provider under a management
services contract may not be assigned, delegated, subcontracted or
transferred to a third party to perform without the prior approval
of the commission. Third parties shall be licensed under this
article before providing service. The commission shall license and
require the display of West Virginia Lottery game logos on
appropriate game surfaces and other gaming items and locations as
the commission considers appropriate.
(d) (e) License application requirements. -- An applicant for
a license to operate a gaming facility shall:
(1) Submit an application to the commission on a form
prescribed by the commission, which
form shall include:
(A) Information concerning the applicant and of any
controlling person of the applicant sufficient to serve as a basis
for a thorough background check;
(B) Subject to the provisions of subsection
(e) (g) of this
section with respect to publicly-traded corporations, the identity
of all stockholders or other persons having a financial interest in either the applicant or any controlling person of the applicant and
the identity of each director or executive officer of the applicant
and of any controlling person of the applicant;
(C) The identity of the historic resort hotel at which the
gaming facility is to be located, including identification of the
county in which the historic resort hotel is located; and
(D) Any other information designated by the commission as
appropriate to assist it in determining whether a license should be
issued;
(2) Pay to the commission a nonrefundable application fee for
deposit into the
state gaming Community-Based Service Fund
created
in section twenty-seven, article twenty-two-c of this chapter in
the amount of
$25,000 $65,000.
(3) Pay to the commission an investigative fee for deposit in
the state gaming fund in the amount of twenty thousand dollars.
(f) Privately held corporations. -- In the event that an
applicant or any controlling person of an applicant is a privately
held corporation, then the commission may not grant a license until
the commission determines that each person who has control of the
applicant also meets all of the qualifications the applicant must
meet to hold the license for which application is made. The
following persons are considered to have control of an applicant:
(1) Each person associated with a corporate applicant,
including any corporate holding company, parent company or subsidiary company of the applicant, but not including a bank or
other licensed lending institution which holds a mortgage or other
lien acquired in the ordinary course of business, who has the
ability to control the activities of the corporate applicant or
elect a majority of the board of directors of that corporation;
(2) Each person associated with a noncorporate applicant who
directly or indirectly holds any beneficial or proprietary interest
in the applicant or who the commission determines to have the
ability to control the applicant; and
(3) Key personnel of an applicant, including any executive,
employee or agent, having the power to exercise significant
influence over decisions concerning any part of the applicant's
business operation.
(e) (g) Publicly traded corporations. -- In the event that an
applicant or any controlling person of an applicant is a publicly-
traded corporation, then information otherwise required to be
furnished by an applicant with respect to stockholders, directors
and executive officers of the publicly traded corporation shall be
limited to information concerning only those executive officers of
the
publicly-traced publicly traded corporation whose ongoing and
regular responsibilities relate or are expected to relate directly
to the operation or oversight of the gaming facility. "Publicly
traded corporation" as used herein means any corporation or other
legal entity, except a natural person, which has one or more classes of securities registered pursuant to section twelve of the
Securities Exchange Act of 1934, as amended (15 U. S. C. §78), or
is an issuer subject to section fifteen-d of
that said act.
(f) (h) Gaming facility qualifications. -- An applicant for a
license to operate a gaming facility shall demonstrate that the
gaming facility will: (1) Be accessible to disabled individuals;
(2) not be located at the main entrance to the historic resort
hotel; (3) be licensed in accordance with all other applicable
federal, state and local laws; and (4) meet any other
qualifications specified by rules adopted by the commission.
(g) Investigative fee. -- The investigative fee paid by an
applicant at the time of submitting an application shall be applied
to the cost of any investigation relating to the applicant required
under this article.
(1) If the cost of the investigation is greater than twenty
thousand dollars, the investigative agency shall show cause for the
additional cost. The applicant shall pay the additional costs to
the extent approved by the commission, but not to exceed a total
investigative fee of forty thousand dollars;
(2) If the cost of the investigation is less than the
aggregate investigative fee paid by an applicant, the commission
shall refund the difference.
(h) (i) Surety bond requirement. -- The licensed
operator of
a gaming facility shall execute a surety bond to be given to the state to guarantee the licensee faithfully makes
the all payments
keeps books and records, makes reports and conducts gaming in the
licensee's gaming facility in accordance with the provisions of
this article and rules promulgated by the commission. The surety
bond shall be:
(1) In
the an amount
of five million dollars determined by the
commission to be adequate to protect the state against nonpayment
by the licensee of amounts due the state under this article;
(2) In a form approved by the commission; and
(3) With a surety approved by the commission
The bond shall
remain in effect during the term of the license, and may not be
canceled by a surety on less than thirty days notice in writing to
the commission. The total and aggregate liability of the surety on
the bond is limited to the amount specified in the bond. who is
licensed to write surety insurance in this state. The bond shall
remain in effect during the term of the license and may not be
canceled by a surety on less than thirty days' notice in writing to
the commission. The total and aggregate liability of the surety on
the bond is limited to the amount specified in the bond.
(i) (j) Authorization of license. -- A license to operate a
gaming facility authorizes the licensee to engage in the business
of operating a gaming facility while the license is effective. A
license to operate a gaming facility is not transferable or
assignable and cannot be sold or pledged as collateral.
(j) (k) Audits. -- A licensed gaming facility operator shall
submit to the commission an annual audit, by a certified public
accountant
who is, or whose firm is, licensed in the State of West
Virginia,
or by a nationally recognized accounting firm, of the
financial transactions and condition of the licensee's total
operations. The audit shall be in accordance with generally
accepted auditing principles.
(k) (l) Annual license maintenance renewal fee. -- For the
second year that it is licensed, the licensed gaming facility
operator shall pay to the commission
an annual a license
maintenance renewal fee of
five thousand dollars $250,000. For the
third year that it is licensed, the licensed gaming facility shall
pay to the commission a license renewal fee of $500,000. For every
year after the third year that it is licensed, the licensed gaming
facility shall pay to the commission a license renewal fee that is
calculated by determining the annual average gross receipts of the
West Virginia pari-mutuel racetracks with table games licenses for
the last full fiscal year of adjusted gross receipts available, and
dividing that number into the licensed gaming facility operator's
adjusted gross receipts for the same full fiscal year of adjusted
gross receipts to obtain a percentage, and by multiplying the
resulting percentage by $2,500,000: Provided, That the amount
required to be paid by the licensed gaming facility shall be not
less than $500,000, nor more than $2,500,000.
(l) (m) The licensed gaming facility
operator shall provide to
the commission, at no cost to the commission, suitable office space
at the gaming facility to perform the duties required of it by the
provisions of this article.
§29-25-11. License to supply gaming facility.
(a)
Licenses. -- The commission may issue a license to each
applicant for a license to supply a gaming facility with gaming
devices, gaming supplies or services who meets the requirements of
this section.
(b)
License qualifications. -- To qualify for a license, an
applicant shall meet the requirements of this section. Each
applicant who is an individual who is a controlling person of an
applicant that is not an individual shall be of good moral
character and reputation and shall have the necessary experience
and financial ability to successfully carry out the functions of a
gaming facility supplier. The commission may adopt rules
establishing additional requirements for a gaming facility
supplier.
(c)
Supplier specification. -- An applicant for a license to
supply gaming devices, equipment and supplies to a gaming facility
shall demonstrate that the gaming devices, equipment and supplies
that the applicant plans to sell or lease to the licensed operator
of the gaming facility, conform or will conform to standards
established by rules of the commission and applicable state law.
(d)
License application requirements. -- An applicant for a
license shall:
(1) Submit an application to the commission on the form that
the commission requires
including adequate information to serve as
a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check
by the Criminal Identification Bureau of the West Virginia State
Police and the Federal Bureau of Investigation. The fingerprints
shall be furnished by all persons required to be named in the
application and shall be accompanied by a signed authorization for
the release of information by the Criminal Investigation Bureau and
the Federal Bureau of Investigation. The commission may require any
applicant seeking the renewal of a license or permit to furnish
fingerprints for a national criminal records check by the Criminal
Identification Bureau of the West Virginia State Police and the
Federal Bureau of Investigation; and
(2) (3) Pay to the commission a nonrefundable application fee
for deposit into the state gaming fund in the amount of
$5,000 $100
to be retained by the commission as reimbursement for the licensing
process.
(3) Pay to the commission an investigative fee for deposit
into the state gaming fund in the amount of ten thousand dollars,
or a lesser amount as the commission upon application may
conditionally approve in a particular case.
(e) Investigative fee. -- the investigative fee paid by an
applicant for a license to supply a gaming facility shall be
applied to the cost of any investigation of the applicant required
under this article.
(1) If the costs of the investigation of an applicant are
greater than ten thousand dollars, or the lesser investigative fee
as may have been conditionally approved by the commission, the
investigative agency must show cause for the additional cost. If
the commission approves, the applicant shall pay the additional
costs as required by the commission, but not to exceed a total
investigative fee of fifty thousand dollars.
(2) If the costs of the investigation of an application are
less than the aggregate investigative fee paid to the commission,
the commission shall refund the difference.
(f) (e) Authorization of licensee. -- A license to supply a
gaming facility authorizes the licensee to engage in the business
of selling gaming devices and supplies to a gaming facility while
the license is effective.
(g) (f) Inventory. -- A licensed gaming facility supplier
shall submit to the commission a list of all equipment, gaming
devices and supplies sold or delivered to a gaming facility in this
state when required by the commission.
(h) (g) Annual license maintenance renewal fee.-- A licensed
gaming facility supplier shall pay to the commission an annual license
maintenance renewal fee of
$5,000 $100.
§29-25-12. License to be employed by operator of gaming facility.
(a)
Licenses. -- The commission shall issue a license to each
applicant for a license to be employed in the operation of a gaming
facility who meets the requirements of this section.
(b)
License qualifications. -- To qualify for a license to be
employed in a gaming facility, the applicant shall be an individual
of good moral character and reputation and have been offered
employment by the gaming facility contingent upon licensure
pursuant to the provisions of this section. The commission, by
rule, may specify additional requirements to be met by applicants
based on the specific job classification in which the applicant is
to be employed.
(c)
License application requirements. -- An applicant for a
license to be employed in the operation of a gaming facility shall:
(1) Submit an application to the commission on the form that
the commission requires, including adequate information to serve as
a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check
by the Criminal Identification Bureau of the West Virginia State
Police and the Federal Bureau of Investigation. The fingerprints
shall be furnished by all persons required to be named in the
application and shall be accompanied by a signed authorization for
the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any
applicant seeking the renewal of a license or permit to furnish
fingerprints for a national criminal records check by the Criminal
Identification Bureau of the West Virginia State Police and the
Federal Bureau of Investigation; and
(2) (3) Pay to the commission a nonrefundable
investigative
application fee
for deposit into the state gaming fund in the
amount of
three hundred dollars $100 to be retained by the
commission as reimbursement for the licensing process. This which
fee may be paid on behalf of the applicant by the employer.
(3) Pay to the commission a nonrefundable investigative fee
for deposit into the state gaming fund in an amount to be fixed by
the commission by rule, which fee may be paid on behalf of the
applicant by the employer.
(d)
Authorization of licensee. -- A license to be employed by
a gaming facility authorizes the licensee to be so employed in the
capacity designated by the commission with respect to the license
while the license is effective.
(e)
Annual license maintenance renewal fee. -- Each licensed
employee shall pay to the commission an annual license
maintenance
renewal fee set by the commission,
the maintenance which renewal
fee may vary based on the capacity designated with respect to the
licensee but in no event to exceed
three hundred dollars $100. The
fee may be paid on behalf of the licensed employee by the employer.
§29-25-13. False statements on applications; other license
requirements and prohibitions.
(a) Any person who knowingly makes a false statement on an
application is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not
less than one hundred nor more than
$500 or $1,000 and confined in
the county or regional jail
for not
less more than six months
, or both fined and confined except that
in the case of a person other than a natural person, the amount of
the fine imposed may not be more than $25,000.
(b) The commission may not grant a license pursuant to the
provisions of this article if there is substantial evidence that
the applicant:
(1) Has knowingly made a false statement of a material fact to
the commission;
(2) Has been suspended from operating a gambling game, gaming
device or gambling operation in another jurisdiction by a board or
other governmental authority of that jurisdiction having
responsibility for the regulation of gambling or gaming activities;
(3) Has been convicted of a felony, an offense of moral
turpitude, a gambling offense, a theft or fraud offense or has
otherwise demonstrated, either by a police record or other
satisfactory evidence, a lack of respect for law and order;
(4) Has failed to meet any monetary obligation in connection
with a gaming facility or any other form of gaming; or
(5) In the case of an applicant for a license to operate a
gaming facility or to supply a gaming facility:
(A) Has not demonstrated financial responsibility sufficient
to meet adequately the requirements of the enterprise proposed;
(B) Is not the true owner of the enterprise or is not the sole
owner and has not disclosed the existence or identity of other
persons who have an ownership interest in such enterprise; or
(C) Is a corporation and five percent or more of the stock of
the corporation is subject to a contract or option to purchase at
any time during the period for which the license is issued unless
the contract or option was disclosed to and approved by the
commission.
(c) In addition to any other grounds specified in this
article, and subject to the hearing provisions of section seventeen
of this article, in the case of a license to operate a gaming
facility the commission may deny a license to any applicant,
reprimand any licensee, or suspend or revoke a license if the
applicant or licensee or any controlling person of the applicant or
licensee knowingly employs an individual in a senior management
position who has been convicted of a felony under the laws of this
state, another state, a territory of the United States or the
United States or employs any individual in a senior management
position who has had a license relating to the operation of a
gaming facility revoked by this state or any other state.
(d) Character references may be required of persons licensed,
but the character reference may not be obtained from persons in the
same or similar occupations or professions in other states.
§29-25-16. License denial, revocation and reprimand.
(a) The commission may deny a license to any applicant,
reprimand any licensee, or suspend or revoke a license if the
applicant or licensee, or any controlling person of the applicant
or license:
(1) Fraudulently or deceptively obtains or attempts to obtain
a license for the applicant or licensee or for another;
(2) Fraudulently or deceptively uses a license;
or
(3) Is convicted of a felony under the laws of this state,
another state, a territory of the United States or the United
States;
(4) Is convicted of a misdemeanor under the laws of this
state, another state, the United States or a territory of the
United States for gambling or a gambling related activity; or
(5) Is not complying with this act, the rules or the minimum
internal control standards promulgated by the commission or the
gaming facility.
(b) Instead of or in addition to reprimanding a licensee or
suspending or revoking a license, the commission may impose a civil
penalty under section twenty-seven of this article.
§29-25-17. Hearing procedures.
(a) Right to a hearing. -- Except as otherwise provided by
law, before the commission takes any action involving a licensee
under the provisions of this article, it shall give the persons
against whom the action is contemplated an opportunity for a
hearing before the commission.
(b) Notice of hearing and right to counsel. -- The commission
shall give notice and hold the hearing in accordance with
state
law, article five, chapter twenty-nine-a of this code. The notice
shall be given to the person by certified mail to the last known
address of the person at least thirty days before the hearing. The
person may be represented at the hearing by counsel.
(c) Failure to comply with subpoena. -- If a person fails to
comply with a subpoena issued under this section, on petition of
the commission, the circuit court may compel obedience to the
subpoena. If after due notice the person against whom the action is
contemplated fails or refuses to appear, the commission may hear
and determine the matter.
(d) Appeal. -- Any person aggrieved by a final decision of the
commission in a contested case may file a
as defined in petition
for appeal in the circuit court of Kanawha County within thirty
days after the person received notice of the final order or
decision, as provided in section four, article five, chapter
twenty-nine-a of this code.
may appeal as provided for in that
chapter
§29-25-18. Inspection and seizure.
As a condition of licensure
and notwithstanding the separate
licensure of the facility as a private club pursuant to , to
inspect or investigate for criminal violations of this article
seven, chapter sixty of this code, any licensee shall consent to
any search without a warrant by agents
of the commission or of the
State Police designated by the commission of the licensee's person,
personal property and effects, and premises which are located in
the gaming facility or adjacent facilities under the control of the
licensee, to inspect or investigate for criminal violations of this
article or violations of rules adopted by the commission. or
violations of the rule promulgated by the commission, the
commission and the West Virginia State Police may each, without
notice and without warrant:
(1) Inspect and examine all premises of the gaming facility
with West Virginia Lottery table games, gaming devices, the
premises where gaming equipment is manufactured, sold, distributed
or serviced or any premises in which any records of the activities
are prepared or maintained;
(2) Inspect any gaming equipment in, about, upon or around the
premises of a gaming facility with West Virginia Lottery table
games;
(3) Seize summarily and remove from the premises and impound
any gaming equipment for the purposes of examination, inspection or testing;
(4) Inspect, examine and audit all books, records and
documents pertaining to a gaming facility licensee's operation;
(5) Summarily seize, impound or assume physical control of any
book, record, ledger, West Virginia Lottery table game, gaming
equipment or device, cash box and its contents, counting room or
its equipment or West Virginia Lottery table game operations; and
(6) Inspect the person, and the person's personal effects
present on the grounds of a licensed gaming facility with West
Virginia Lottery table games, of any holder of a license issued
pursuant to this article while that person is present on the
grounds of a licensed gaming facility having West Virginia Lottery
table games.
§29-25-19. Consent to presence of law-enforcement officers;
wagering limits; operations and services; posting
of betting limits.
(a)
Consent to presence of law-enforcement officers. -- Any
individual entering
a the gaming facility shall be advised by the
posting of a notice or other suitable means of the possible
presence of state, county or municipal law-enforcement officers and
by entering the gaming facility impliedly consents to the presence
of the law-enforcement officers.
(b)
Setting of wagering limits Commission discretion in gaming
operations. -- The operator of a gaming facility may set minimum wagers for any authorized game of chance, except for video lottery.
Video lottery terminals operated at the gaming facility may not
allow more than
two $5 to be wagered on a single game.
(1) Subject to the approval of the commission, the gaming
facility licensee shall, with respect West Virginia Lottery table
games, establish the following:
(A) Maximum and minimum wagers;
(B) Advertising and promotional activities;
(C) Hours of operation; and
(D) The days during which games may be played; and
(2) The commission may consider multiple factors, including,
but not limited to, industry standards, outside competition and any
other factors as determined by the commission to be relevant in its
decision to approve the gaming facility's determination of those
items listed in subdivision (1) of this subsection.
(c) Setting of operations. -- Notwithstanding anything to the
contrary contained elsewhere in this chapter, the commission may
establish the following parameters for commission regulated lottery
games of any kind which is played at a licensed gaming facility:
(1) Minimum and maximum payout percentages;
(2) Any probability limits of obtaining the maximum payout for
a particular play; and
(3) Limitations on the types and amounts of financial
transactions, including extension of credit to a patron, which a gaming facility can enter into with its patrons.
(d) Posting of betting limits. -- A gaming facility shall
conspicuously post a sign at each West Virginia Lottery table game
indicating the permissible minimum and maximum wagers pertaining at
that table. A gaming facility licensee may not require any wager to
be greater than the stated minimum or less than the stated maximum.
However, any wager actually made by a patron and not rejected by a
gaming facility licensee prior to the commencement of play shall be
treated as a valid wager.
§29-25-20. Accounting and reporting of gross terminal income;
distribution.
The licensed gaming facility shall submit
fifty-three
thirty-six percent of the gross terminal income from video lottery
games at the licensed gaming facility to the commission through
electronic funds transfer
to be deposited into the Historic Resort
Hotel Fund created in section twenty-two of this article. The
licensed gaming facility shall also submit seventeen percent of the
gross terminal income from video lottery games at the licensed
gaming facility to the commission through electronic funds transfer
to be deposited into the Human Resource Benefit Fund created in
section twenty-two-a of this article. Each of these submissions
shall be made to the commission weekly. The gaming licensee shall
furnish to the commission all information and bank authorizations
required to facilitate the timely transfer of moneys to the commission. The gaming licensee shall provide the commission thirty
days' advance notice of any proposed account changes in order to
assure the uninterrupted electronic transfer of funds.
§29-25-21. Taxes on games other than video lottery games.
(a)
Imposition and rate of limited gaming profits tax. --
There is hereby levied and shall be collected a privilege tax
against a gaming
licensee license in an amount to be determined by
the application of the rate against adjusted gross receipts of the
licensed gaming facility. The rate of tax is
thirty-seven thirty-
five percent.
Of that thirty-five percent, thirty percent shall be
directly deposited by the commission into the Historic Resort Hotel
Fund created in section twenty-two of this article and the
remaining five percent shall be directly deposited by the
commission into the Human Resource Benefit Fund created in section
twenty-two-a of this article. For purposes of calculating the
amount of tax due under this section, the licensee shall use the
accrual method of accounting. This tax is in addition to all other
taxes and fees imposed:
Provided, That the consumers sales and
service tax imposed pursuant to article fifteen, chapter eleven of
this code may not apply to the proceeds from any wagering with
respect to
an authorized game of chance a West Virginia Lottery
table game pursuant to this article.
(b)
Computation and payment of tax. --The taxes levied under
the provisions of this section are due and payable
to the commission in
monthly weekly installments on or before the
twenty-
first day Wednesday of
the month following the month in which the
tax is accrued each week. The taxpayer shall, on or before the
twenty-first day Wednesday of each
month week, make out and
mail
submit by electronic communication to the commission a return for
the preceding
month week, in the form prescribed by the commission,
showing: (1) The total gross receipts from the gaming facility for
that month and the adjusted gross receipts; (2) the amount of tax
for which the taxpayer is liable; and (3) any further information
necessary in the computation and collection of the tax which the
Tax Commissioner or the commission may require. Payment of the
amount of tax due shall accompany the return. All payments made
pursuant to this section shall be deposited in
the state gaming
fund accordance with sections twenty-two and twenty-two-a of this
article. Payments due to the commission under this section and
payments due to the commission under section twenty of this article
shall be sent simultaneously.
(c) Negative adjusted gross receipts. -- When adjusted gross
receipts for a week is a negative number because the winnings paid
to patrons wagering on the gaming facility's West Virginia Lottery
table games exceeds the gaming facility's gross receipts from the
purchase of table game tokens, chips or electronic media by
patrons, the commission shall allow the licensee to, pursuant to
rules of the commission, carry over the negative amount of adjusted gross receipts to returns filed for subsequent weeks. The negative
amount of adjusted gross receipts may not be carried back to an
earlier week and the commission is not required to refund any tax
received by the commission, except when the licensee surrenders its
license to act as agent of the commission in operating West
Virginia Lottery table game under this article and the licensee's
last return filed under this section shows negative adjusted gross
receipts. In that case, the commission shall multiply the amount of
negative adjusted gross receipts by the applicable rate of tax and
pay the amount to the licensee, in accordance with rules of the
commission.
(c) (d) Prohibition on credits. -- Notwithstanding any other
provision of this code to the contrary, no credits may be allowed
against any tax imposed on any taxpayer by this code for an
investment in gaming devices and supplies, for an investment in
real property which would be directly utilized for the operation of
a gaming facility or for any jobs created at a gaming facility.
Notwithstanding any other provision of this code to the contrary,
the tax imposed by this section may not be added to federal taxable
income in determining West Virginia taxable income of a taxpayer
for purposes of article twenty-four, chapter eleven of this code.
(e) Tax imposed by this section is in lieu of other taxes. --
(1) With the exception of the ad valorem property tax
collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all other state taxes and fees imposed
on the operation of, or the proceeds from operation of West
Virginia Lottery table games, except as otherwise provided in this
section. The consumers sales and service tax imposed pursuant to
article fifteen, chapter eleven of this code shall not apply to the
licensee's gross receipts from any wagering on a West Virginia
Lottery table game pursuant to this article or to the licensee's
purchasing of gaming equipment, supplies or services directly used
in operation of a West Virginia Lottery table games authorized by
this article. These purchases are also exempt from the use tax
imposed by article fifteen-a, chapter eleven of this code.
(2) With the exception of the ad valorem property tax
collected under chapter eleven-a of this code, the tax imposed by
this section is in lieu of all local taxes and fees levied on or
imposed with respect to the privilege of offering a West Virginia
Lottery table game to the public, including, but not limited to,
the municipal business and occupation taxes and amusement taxes
authorized by article thirteen, chapter eight of this code and the
municipal sales and service tax and use tax authorized by article
thirteen-c of said chapter.
§29-25-22. Historic Resort Hotel Fund; allocation of adjusted
gross receipts; disposition of license fees.
(a) There is hereby created a special fund in the State
Treasury which shall be designated and known as the
state gaming Historic Resort Hotel Fund.
All revenues received from licenses and
applicants under this article, all Thirty-six percent of the gross
terminal income received by the commission under section twenty of
this article and
all tax revenues from the tax imposed thirty
percent of the adjusted gross receipts received by the commission
under section twenty-one of this article shall be deposited with
the State Treasurer and placed in the
state gaming Historic Resort
Hotel Fund. The fund shall be an interest bearing account with
interest to be credited to and deposited in the
state gaming
Historic Resort Hotel Fund.
(b) All expenses of the commission shall be paid from the
state gaming Historic Resort Hotel Fund, including reimbursement of
the State Police for activities performed at the request of the
commission in connection with background investigations or
enforcement activities pursuant to this article. At no time may the
commission's expenses under this article exceed fifteen percent of
the total of the annual revenue received from the licensee under
this article, including all license fees, taxes or other amounts
required to be deposited in the
state gaming Historic Resort Hotel
Fund.
(c) The balance of the
state gaming Historic Resort Hotel Fund
shall
become net income and shall be divided as follows:
(1)
Eighty-nine Sixty-four percent of the
state gaming
Historic Resort Hotel Fund net income shall be paid into the General Revenue Fund to be appropriated by the Legislature;
(2) Nineteen percent of the Historic Resort Hotel Fund net
income shall be paid into the State Debt Reduction Fund established
in section twenty-seven, article twenty-two-c of this chapter to be
appropriated by the Legislature;
(2) (3) The Tourism Promotion Fund established in section
nine
twelve, article
one two, chapter five-b of this code shall receive
three percent of the
state gaming Historic Resort Hotel Fund net
income;
(3) (4) The county where the gaming facility is located shall
receive four percent of the
state gaming Historic Resort Hotel Fund
net income;
(4) (5) The municipality where the gaming facility is located
or the municipality closest to the gaming facility by paved road
access
as of the effective date of the reenactment of this section
by the 2009 regular session of the Legislature shall receive two
and one-half percent of the
state gaming Historic Resort Hotel Fund
net income;
and
(5) (6) The municipalities within the county where the gaming
facility is located, except for the municipality receiving funds
under subdivision
(4) (5) of this subsection, shall receive equal
shares of two
and one-half percent of the
state gaming Historic
Resort Hotel Fund net income;
(7) Each county commission in the state that is not eligible to receive a distribution under subdivision (4) of this subsection
shall receive equal shares of two and one-half percent of the
Historic Resort Hotel Fund net income: Provided, That funds
transferred to the county commission under this subdivision shall
be used only to pay regional jail expenses and the costs of
infrastructure improvements and other capital improvements; and
(8) The governing body of each municipality in the state that
is not eligible to receive a distribution under subdivisions (5)
and (6) of this subsection shall receive equal shares of two and
one-half percent of the Historic Resort Hotel Fund net income:
Provided, That funds transferred to municipalities under this
subdivision shall be used only to pay for debt reduction in
municipal police and fire pension funds and the costs of
infrastructure improvements and other capital improvements.
(d) Notwithstanding any provision of this article to the
contrary, all limited gaming facility license fees and license
renewal fees received by the commission pursuant to section nine of
this article shall be deposited into the Community-Based Service
Fund created in section twenty-seven, article twenty-two-c of this
chapter.
(e) With the exception of the license fees and license renewal
fees received by the commission pursuant to section nine of this
article, all revenues received from licensees and license
applicants under this article shall be retained by the commission as reimbursement for the licensing process.
§29-25-22a. Human Resource Benefit Fund.
(a) There is hereby created a special fund in the State
Treasury which shall be designated and known as the Human Resource
Benefit Fund. Seventeen percent of the gross terminal income
received by the commission under section twenty of this article and
five percent of the adjusted gross receipts received by the
commission under section twenty-one of this article shall be
deposited with the State Treasurer and placed in the Human Resource
Benefit Fund. The fund shall be an interest-bearing account with
interest to be credited to and deposited in the Human Resource
Benefit Fund.
(b) For each dollar expended by the historic resort hotel for
fringe benefits for the employees of the historic resort hotel, the
commission shall transfer to the historic resort hotel one dollar
of recoupment from the Human Resource Benefit Fund:
Provided, That
the historic resort hotel is not entitled to recoupment for money
spent on fringe benefits beyond the amount of money available to be
expended from the Human Resource Benefit Fund at the time the
request for recoupment is made by the historic resort hotel.
(c) The commission shall have full rights and powers to audit
the spending of money from the Human Resource Benefit Fund to
ensure that the money is being used in the manner prescribed under
this section. The commission shall have the power and authority to audit as frequently as it sees fit, so long as it conducts at least
two audits each fiscal year.
(d) There is hereby created the Human Resource Benefit
Advisory Board, which shall meet every six months to verify the
commission's audit.
(1) The board shall consist of five members, all residents and
citizens of the State of West Virginia:
(A) One member shall be a representative of the collective
bargaining unit that represents a majority of the employees of the
historic resort hotel;
(B) One member shall be a representative of the historic
resort hotel; and
(C) Three members shall be employees of the commission.
(2) The members shall be appointed or elected by the entity or
persons that they represent. Establishment of terms for members
shall be determined by the entity or persons that they represent,
if the entity or persons choose to set terms.
(3) A majority of members constitutes a quorum for the
transaction of business.
(4) The board shall meet every six months at the headquarters
of the commission. Upon its own motion or upon the request of the
commission, it may hold meetings in addition to the required
meetings. The commission shall pay the travel expenses of members
of the board who are not employed by the commission.
(5) All meetings of the board shall be open to the public.
(6) The board shall operate in an advisory capacity. Its
functions shall include, but are not limited to, reviewing and
verifying financial audits of the Human Resource Benefit Fund
conducted by the commission and its employees and reviewing source
documents associated with disbursements from the Human Resource
Benefit Fund.
(7) Within thirty days of any board meeting, the board shall
report to the commission its findings and any recommendations it
may have. The report to the commission shall be made at a
commission meeting that is open to the public.
(e) In the event that an audit conducted by the commission, or
suggested changes to the audit submitted by the board and adopted
by the commission, reveals that the historic resort hotel has acted
improperly or negligently in its claim for money from the Human
Resource Benefit Fund, the commission may impose a civil penalty
against the historic resort hotel of up to one hundred percent of
the improperly claimed amount. Any civil penalty imposed on the
historic resort hotel by the commission under this subsection shall
be deposited by the commission into the Historic Resort Hotel Fund.
§29-25-23. Prohibition on unauthorized wagering; complimentary
service, gift, cash or other item.
(a) A gaming licensee may not permit any form of wagering
except as authorized under this article
or article twenty-two, twenty-two-a or twenty-two-c of this chapter.
(b) A gaming licensee may receive wagers only from an
individual present in a licensed gaming facility.
(c) All gaming facility operations shall utilize a cashless
wagering system whereby all players' money is converted to tokens,
paper vouchers, electronic cards or chips at the request of the
wagerer which can only be used for wagering in a licensed gaming
facility and wagering may not be conducted with money or other
negotiable currency:
(1) Wagering on West Virginia Lottery table games may not be
conducted with money or other negotiable currency or with tokens,
electronic cards or other electronic media or chips not issued by
the gaming facility where the West Virginia Lottery table game will
be played.
(2) At the request of the player, the licensee shall convert
a player's tokens, electronic cards or other electronic media or
chips back to money.
(3) The licensee may not charge a fee for converting a
player's money to an acceptable media for playing a West Virginia
Lottery table game or charge a fee for converting the acceptable
media for wagering a West Virginia Lottery table game back to
money.
(d) The gaming licensee is prohibited from offering any
property or service, other than incidental food and beverages, to any person as an inducement to participate in a game of chance.
This prohibition includes the offering of complimentary or
discounted rooms in exchange for a guest participating in any game
of chance at the gaming facility. complimentary service, gift, cash
or other item of value to any person unless:
(1) The complimentary consists of room, food, beverage or
entertainment expenses provided directly to the patron and his or
her guests by the gaming facility licensee or indirectly to the
patron and his or her guests on behalf of the licensee by a third
party;
(2) The complimentary consists of documented transportation
expenses provided directly to the patron and his or her guests on
behalf of a gaming facility licensee by a third party: Provided,
That the licensee complies with the rules promulgated by the
commission to ensure that a patron's and his or her guests'
documented transportation expenses are paid for or reimbursed only
once; or
(3) The complimentary consists of coins, tokens, cash or other
complimentary items or services provided through any complimentary
distribution program, the terms of which shall be filed with the
commission upon implementation of the program or maintained
pursuant to commission rule. Any change in the terms of a
complimentary program shall be filed with the commission upon
implementation of the change.
(e) Notwithstanding any provision of subsection (d) of this
section to the contrary, a gaming facility licensee may offer and
provide complimentary cash or noncash gifts that are not otherwise
included in that subsection to any person: Provided, That any
complimentary cash or noncash gifts in excess of an amount per trip
to be set by interpretive rule of the commission are supported by
documentation regarding the reason the gift was provided to the
patron and his or her guests, including, where applicable, a
patron's player rating. The documentation shall be maintained by a
gaming facility licensee in accordance with commission rules. For
purposes of this subsection, all gifts presented to a patron and a
patron's guests directly by the gaming facility licensee or
indirectly on behalf of the licensee by a third party within any
five-day period shall be considered to have been made during a
single trip.
§29-25-24. Individual gaming restrictions.
(a) An individual may
not enter a
designated gaming
facility
area or remain in a
designated gaming
facility to participate in
authorized games of chance area only if the individual:
(1) Is
not a either;
(A) A registered overnight guest at the historic resort hotel
on whose premises the gaming facility is located;
(B) A person who is a not a registered overnight guest, but is
a registered participant at a convention or event being held at the historic resort hotel: Provided, That this paragraph does not
apply on any calendar day when less than four hundred guest rooms
are occupied at the historic resort hotel; or
(C) A member of a home-owner or facility association that
entitles members to substantial privileges at the historic resort
hotel on whose premises the gaming facility is located or an
overnight guest of such a member: Provided, That the association
was in existence as of April 1, 2009;
(2) Is
under the age of at least twenty-one years
of age;
(3) Is
not visibly intoxicated;
(4)
Is Has not been determined by the gaming facility operator
or the commission to be unruly, disruptive or otherwise interfering
with operation of the gaming facility; or to be likely to commit,
or to attempt to commit, a violation of this article; and
(5) Has
not been barred by the commission from entering a
gaming facility.
(b) Notwithstanding any provisions of this code to the
contrary, no employee of the commission or employee of the historic
resort hotel or any member of his or her immediate household may
wager at the gaming facility.
§29-25-25. Offenses and penalties.
(a) A gaming licensee is guilty of unlawful operation of a
game of chance West Virginia Lottery table game when:
(1) The licensee operates a
game of chance West Virginia Lottery table game or places a video lottery game or video lottery
terminal in any location
other than a gaming facility that is not
a designated gaming area approved by the commission;
(2) The licensee acts or employs another person to act
a shill
or decoy as if he or she is not an agent or employee of the
licensee in order to encourage participation in a
game of chance
West Virginia Lottery table game in a gaming facility;
(3) The licensee knowingly permits an individual under the age
of twenty-one years of age to enter or remain in a
gaming facility
for the purpose of making a wager designated gaming area or to play
video lottery terminals or West Virginia Lottery table game at a
licensed gaming facility; or
(4) The licensee exchanges tokens, chips or other forms of
credit to be used for wagering in a gaming facility for anything of
value except in exchange for money
or credits to a player's
account;
(5) The licensee operates a West Virginia Lottery table game
or places a video lottery game or video lottery terminal into play
without authority of the commission to do so;
(6) The licensee knowingly conducts, carries on, operates or
exposes for play or allows to be conducted, carried on, operated or
exposed for play any West Virginia Lottery table game, video
lottery game, video lottery terminal or other device, equipment or
material that has in any manner been tampered with or placed in a condition or operated in a manner, the result of which is designed
to deceive the public; or
(7) The licensee employs an individual in a position or to
perform duties, for which a license is required by this article or
rules of the commission and the employee does not have a license
issued under the provisions of this article or the licensee
continues to employ the individual in a position or to perform
duties, for which a license is required by this article or rules of
the commission, after the employee's license expired, was revoked
by the commission or not renewed by the commission.
(b) A person is guilty of a misdemeanor when:
(1) The person operates, carries on or exposes for play an
West Virginia Lottery table game prior to obtaining a license or
after the person's license has expired and prior to actual renewal
of the license or before the West Virginia Lottery table game and
the licensee's rules for play for the game are approved or modified
and approved by the commission;
(2) The person works or is employed in a position requiring a
license under the provisions of this article without having the
license required by this article;
(3) A licensee who possesses any video lottery terminal or
other device, equipment or material which the person knows has been
manufactured, distributed, sold, tampered with or serviced in
violation of the provisions of this article; or
(4) A licensee who knowingly conducts, carries on, operates or
exposes for play, or allows to be conducted, carried on, operated
or exposed for play any video lottery game, video lottery terminal,
or other device, equipment or material which has in any manner been
tampered with, or placed in a condition, or operated in a manner,
the result of which tends to deceive the public or tends to alter
the normal random selection of characteristics or the normal random
selection of characteristics or the normal chance of the video
lottery game.
(b) (c) A person is guilty of
felonious wager a felony when:
(1) The person offers, promises or gives anything of value or
benefit to a person who
is connected has an ownership or financial
interest in, is employed by or has a service contract with a gaming
facility
or to that person's spouse or any dependent child or
dependent parent, pursuant to an agreement or arrangement,
in fact
or implied from the circumstances, or with intent that the promise
or thing of value or benefit will influence the actions of the
person
to whom the offer, promise, or gift was made in order to
affect or attempt to affect the outcome of
an authorized game of
chance a West Virginia Lottery table game or to influence official
action of the commission. For the purposes of this subdivision and
subdivision (2) of this subsection, the term "person who is
connected with a gaming facility" includes, but is not limited to,
a person licensed under this article as well as an officer or employee of a licensee;
(2) The person solicits or knowingly accepts or receives a
promise of anything of value or benefit while the person is
connected with a gaming facility, pursuant to an understanding or
arrangement or with the intent that the promise or thing of value
or benefit will influence the actions of the person to affect or
attempt to affect the outcome of
an authorized game of chance a
West Virginia Lottery table game, or to influence official action
of the commission;
(3) The person uses or possesses
on property owned by the
licensed gaming facility or on property contiguous to the gaming
facility, with the intent to use,
an electronic, electrical or
mechanical a device
that is designed, constructed or programmed to
assist
the user or another person:
(A) In projecting the outcome of
an authorized game of chance
a West Virginia Lottery table game;
(B) In keeping track of cards
played dealt or in play;
(C) In analyzing the probability of the occurrence of an event
relating to
an authorized game of chance a West Virginia Lottery
table game;
or
(D) In analyzing the strategy for playing or betting to be
used in
an authorized game of chance a West Virginia Lottery table
game, except as permitted
in writing by the commission;
or
(E) In obtaining an advantage at playing any West Virginia Lottery table game at a licensed gaming facility authorized under
this article to operate a West Virginia Lottery table game;
(4) The person cheats at
an authorized game of chance a West
Virginia Lottery table game in a gaming facility;
(5) The person manufacturers, sells, or distributed any cards,
chips, dice, game or device which is intended to be used to violate
any provision of this article
or the table gaming laws of any other
state;
(6) The person instructs a person in cheating or in the use of
a device for that purpose with the knowledge or intent that the
information or use conveyed may be employed to violate any
provision of the article;
(7) The person places a bet after acquiring knowledge, not
available to all players, of the outcome of the
game of chance West
Virginia Lottery table game which is the subject of the bet or aids
a person in acquiring the knowledge for the purpose of placing a
bet contingent on that outcome;
(8) The person claims, collects, takes or attempts to claim,
collect or take money or anything of value into or from a gaming
facility, with intent to defraud, without having made a wager
contingent on winning a
game of chance West Virginia Lottery table
game, or claims, collects or takes an amount of money or thing of
value or greater value than the amount won;
(9) The person
knowingly uses
chips, electronic media or tokens that are counterfeit
chips or tokens to place a wager in a
gaming facility;
(10) The person knowingly uses any medium other than chips,
tokens or other methods of credit approved by the commission to
place a wager in a gaming facility;
(11) The person, not a gaming licensee or employee or agent of
a gaming
licensee facility licensed under this article acting in
furtherance of the gaming licensee's interests, has in his or her
possession
on grounds owned by the gaming facility licensed under
this article or on grounds contiguous to the gaming facility, any
device,
by whatever name called, intended to be used to violate a
provision of this article
or a rule of the commission implementing
or explaining a provision of this article; or
(12) The person, not a gaming licensee or agent of a gaming
licensee acting in furtherance of the gaming licensee's interests,
has in his or her possession any key or device designed for the
purpose of opening, entering or affecting the operation of
an
authorized game of chance a West Virginia Lottery table game, drop
box or an electronic or mechanical device connected with or used in
connection with
an authorized game of chance a West Virginia
Lottery table game in a gaming facility or for removing coins,
tokens, chips or other contents therefrom.
(c) (d) Any person who violates the provisions of subsection
(a)
or (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000
or confined
in a county or regional jail for not more than and confined in jail
for not more than six months,
except that in the case of a person
other than a natural person, the amount of the fine imposed may not
be more than $25,000.
(d) (e) Any person who violates the provisions of subsection
(b) (c) of this section is guilty or a felony and, upon conviction
thereof, shall be fined not less than $5,000 nor more than $10,000
and committed to
the department of corrections of a definite a
state correctional facility for a term of imprisonment of not less
than one year nor more than five years.
(f) With regard to subdivision (3), subsection (c) of this
section, the gaming facility licensee shall post notice of this
prohibition and the penalties of this section in a manner
determined by the commission.
§29-25-26. Forfeiture of property.
(a) Anything of value, including all traceable proceeds
including, but not limited to, real and personal property, moneys,
negotiable instruments, securities and conveyances, is subject to
forfeiture to the State of West Virginia if the item was used for
any of the following:
(1) As a bribe intended to affect the outcome of
an authorized
game of chance a West Virginia Lottery table game in a gaming
facility; or
(2) In exchange for or to facilitate a violation of this
article.
(b) The Legislature finds and declares that the seizure and
sale of items under the provisions of this section is not
contemplated to be a forfeiture as that term is used in Section
five, Article XII of the Constitution of West Virginia and, to the
extent that a seizure and sale may be found to be a forfeiture, the
Legislature hereby finds and declares that the proceeds from a
seizure and sale under this article are not part of net proceeds as
it is contemplated by Section five, Article XII of the Constitution
of West Virginia.
(b) (c) Subsection (a) of this section does not apply if the
act or omission which would give rise to the forfeiture was
committed or omitted without knowledge or consent of the owner of
the property to be forfeited.
§29-25-28. Specific provision for video lottery games.
The commission is authorized to implement and operate video
lottery games at one gaming facility in this state in accordance
with the provisions of this article and the applicable provisions
of article twenty-two-a of this chapter. The provisions of said
article apply to this article, except in the event of conflict or
inconsistency between any of the provisions of this article and the
provisions of article twenty-two-a of this chapter. In that event,
the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article twenty-two-a of this
chapter.
§29-25-29. Video lottery terminal requirements; application for
approval of video lottery terminals; testing of video
lottery terminals; report of test results;
modifications to previously approved models;
conformity to prototype; seizure and destruction of
terminals.
(a) Video lottery terminals registered with and approved by
the commission for use at the gaming facility may offer video
lottery games regulated, controlled, owned and operated by the
commission in accordance with the provisions of this section and
utilizing specific game rules.
(b) A manufacturer may not sell or lease a video lottery
terminal for placement at the gaming facility unless the terminal
has been approved by the commission. Only manufacturers with
licenses may apply for approval of a video lottery terminal or
associated equipment. The manufacturer shall submit two copies of
terminal illustrations, schematics, block diagrams, circuit
analysis, technical and operation manuals and any other information
requested by the commission for the purpose of analyzing and
testing the video lottery terminal or associated equipment.
(c) The commission may require that two working models of a
video lottery terminal be transported to the location designated by the commission for testing, examination and analysis.
(1) The manufacturer shall pay all costs of testing,
examination, analysis and transportation of such video lottery
terminal models. The testing, examination and analysis of any video
lottery terminal model may require dismantling of the terminal and
some tests may result in damage or destruction to one or more
electronic components of such terminal model. The commission may
require that the manufacturer provide specialized equipment or pay
for the services of an independent technical expert to test the
terminal.
(2) The manufacturer shall pay the cost of transportation of
two video lottery terminals to lottery headquarters. The commission
shall conduct an acceptance test to determine terminal functions
and central system compatibility. If the video lottery terminal
fails the acceptance test conducted by the commission, the
manufacturer shall make all modifications required by the
commission.
(d) After each test has been completed, the commission shall
provide the terminal manufacturer with a report containing
findings, conclusions and pass/fail results. The report may contain
recommendations for video lottery terminal modification to bring
the terminal into compliance with the provisions of this article.
Prior to approving a particular terminal model, the commission may
require a trial period not to exceed sixty days for a licensed gaming facility to test the terminal. During the trial period, the
manufacturer may not make any modifications to the terminal model
unless modifications are approved by the commission.
(e) The video lottery terminal manufacturer and licensed
gaming facility are jointly responsible for the assembly and
installation of all video lottery terminals and associated
equipment. The manufacturer and licensed gaming facility shall not
change the assembly or operational functions of a terminal licensed
for placement in West Virginia unless a request for modification of
an existing video terminal prototype is approved by the commission.
The request shall contain a detailed description of the type of
change, the reasons for the change and technical documentation of
the change.
(f) Each video lottery terminal approved for placement at the
gaming facility shall conform to the exact specifications of the
video lottery terminal prototype tested and approved by the
commission. If any video lottery terminal or any video lottery
terminal modification, which has not been approved by the
commission, is supplied by a manufacturer and operated by the
gaming facility, the commission shall seize and destroy all of that
licensed gaming facility's and manufacturer's noncomplying video
lottery terminals and shall suspend the license and permit of the
licensed gaming facility and manufacturer.
§29-25-30. Video lottery terminal hardware and software requirements; hardware specifications; software
requirements for randomness testing; software
requirements for percentage payout; software
requirements for continuation of video lottery game
after malfunction; software requirements for play
transaction records.
(a) The commission may approve video lottery terminals and in
doing so shall take into account advancements in computer
technology, competition from nearby states and the preservation of
jobs at the historic resort hotel. In approving video lottery
terminals licensed for placement in this state the commission shall
insure that the terminals meet the following hardware
specifications:
(1) Electrical and mechanical parts and design principles may
not subject a player to physical hazards or injury.
(2) A surge protector shall be installed on the electrical
power supply line to each video lottery terminal. A battery or
equivalent power back-up for the electronic meters shall be capable
of maintaining accuracy of all accounting records and terminal
status reports for a period of one hundred eighty days after power
is disconnected from the terminal. The power back-up device shall
be located within the locked logic board compartment of the video
lottery terminal.
(3) An on/off switch which controls the electrical current used in the operation of the terminal shall be located in an
accessible place within the interior of the video lottery terminal.
(4) The operation of each video lottery terminal may not be
adversely affected by any static discharge or other electromagnetic
interference.
(5) A bill or voucher acceptor or other means accurately and
efficiently to establish credits shall be installed on each video
lottery terminal. All acceptors shall be approved by the commission
prior to use on any video lottery terminal in this state.
(6) Access to the interior of video lottery terminal shall be
controlled through a series of locks and seals.
(7) The main logic boards and all erasable programmable read-
only memory chips ("EPROMS") are considered to be owned by the
commission and shall be located in a separate locked and sealed
area within the video lottery terminal.
(8) The cash compartment shall be located in a separate locked
area within or attached to the video lottery terminal.
(9) No hardware switches, jumpers, wire posts or any other
means of manipulation may be installed which alter the pay tables
or payout percentages in the operation of a game. Hardware switches
on a video lottery terminal to control the terminal's graphic
routines, speed of play, sound and other purely cosmetic features
may be approved by the commission.
(10) Each video lottery terminal shall contain a single printing mechanism capable of printing an original ticket and
capturing and retaining an electronic copy of the ticket data as
approved by the commission:
Provided, That the printing mechanism
is optional on any video lottery terminal which is designed and
equipped exclusively for coin or token payouts. The following
information shall be recorded on the ticket when credits accrued on
a video lottery terminal are redeemed for cash:
(i) The number of credits accrued;
(ii) Value of the credits in dollars and cents displayed in
both numeric and written form;
(iii) Time of day and date;
(iv) Validation number; and
(v) Any other information required by the commission.
(11) A permanently installed and affixed identification plate
shall appear on the exterior of each video lottery terminal and the
following information shall be on the plate:
(i) Manufacturer of the video lottery terminal;
(ii) Serial number of the terminal; and
(iii) Model number of the terminal.
(12) The rules of play for each game shall be displayed on the
video lottery terminal face or screen. The commission may reject
any rules of play which are incomplete, confusing, misleading or
inconsistent with game rules approved by the commission. For each
video lottery game, there shall be a display detailing the credits awarded for the occurrence of each possible winning combination of
numbers or symbols. All information required by this subdivision
shall be displayed under glass or another transparent substance. No
stickers or other removable devices may be placed on the video
lottery terminal screen or face without the prior approval of the
commission.
(13) Communication equipment and devices shall be installed to
enable each video lottery terminal to communicate with the
commission's central computer system by use of a communications
protocol provided by the commission to each permitted manufacturer,
which protocol shall include information retrieval and terminal
activation and disable programs, and the commission may require
each licensed racetrack to pay the cost of a central site computer
as a part of the licensing requirement.
(14) All video lottery terminals shall have a security system
which temporarily disables the gaming function of the terminal
while opened.
(b) Each video lottery terminal shall have a random number
generator to determine randomly the occurrence of each specific
symbol or number used in video lottery games. A selection process
is random if it meets the following statistical criteria:
(1)
Chi-square test. -- Each symbol or number shall satisfy
the ninety-nine percent confidence limit using the standard chi-
square statistical analysis of the difference between the expected result and the observed result.
(2)
Runs test. -- Each symbol or number may not produce a
significant statistic with regard to producing patterns of
occurrences. Each symbol or number is random if it meets the
ninety-nine percent confidence level with regard to the "runs test"
for the existence of recurring patterns within a set of data.
(3)
Correlation test. -- Each pair of symbols or numbers is
random if it meets the ninety-nine percent confidence level using
standard correlation analysis to determine whether each symbol or
number is independently chosen without regard to another symbol or
number within a single game play.
(4)
Serial correlation test. -- Each symbol or number is
random if it meets the ninety-nine percent confidence level using
standard serial correlation analysis to determine whether each
symbol or number is independently chosen without reference to the
same symbol or number in a previous game.
(c) Each video lottery terminal shall pay out no less than
eighty percent and no more than ninety-nine percent of the amount
wagered. The theoretical payout percentage will be determined using
standard methods of probability theory.
(d) Each video lottery terminal shall be capable of continuing
the current game with all current game features after a video
lottery terminal malfunction is cleared. If a video lottery
terminal is rendered totally inoperable during game play, the current wager and all credits appearing on the video lottery
terminal screen prior to the malfunction shall be returned to the
player.
(e) Each video lottery terminal shall at all times maintain
electronic accounting regardless of whether the terminal is being
supplied with electrical power. Each meter shall be capable of
maintaining a total of no less than eight digits in length for each
type of data required. The electronic meters shall record the
following information:
(1) Number of coins inserted by players or the coin equivalent
if a bill acceptor is being used or tokens or vouchers are used;
(2) Number of credits wagered;
(3) Number of total credits, coins and tokens won;
(4) Number of credits paid out by a printed ticket;
(5) Number of coins or tokens won, if applicable;
(6) Number of times the logic area was accessed;
(7) Number of times the cash door was accessed;
(8) Number of credits wagered in the current game;
(9) Number of credits won in the last complete video lottery
game; and
(10) Number of cumulative credits representing money inserted
by a player and credits for video lottery games won, but not
collected.
(f) No video lottery terminal may have any mechanism which allows the electronic accounting meters to clear automatically.
Electronic accounting meters may not be cleared without the prior
approval of the commission. Both before and after any electronic
accounting meter is cleared, all meter readings shall be recorded
in the presence of a commission employee.
(g) The primary responsibility for the control and regulation
of any video lottery games and video lottery terminals operated
pursuant to this article rests with the commission.
(h) The commission shall directly or through a contract with
a third party vendor other than the video lottery licensee,
maintain a central site system of monitoring the lottery terminals,
utilizing an online or dial-up inquiry. The central site system
shall be capable of monitoring the operation of each video lottery
game or video lottery terminal operating pursuant to this article
and, at the direction of the director, immediately disable and
cause not to operate any video lottery game and video lottery
terminal. As provided in this section, the commission may require
the licensed racetrack to pay the cost of a central site computer
as part of the licensing requirement.
§29-25-31. The specific video lottery duties required of the
gaming facility.
The gaming facility licensee shall:
(a) Acquire video lottery terminals by purchase, lease or
other assignment and provide a secure location for the placement, operation and play of the video lottery terminals;
(b) Pay for the installation and operation of commission
approved telephone lines to provide direct dial-up or online
communication between each video lottery terminal and the
commission's central control computer;
(c) Permit no person to tamper with or interfere with the
operation of any video lottery terminal;
(d) Ensure that any telephone lines from the commission's
central control computer to the video lottery terminals located at
the licensed gaming facility are at all times connected and prevent
any person from tampering or interfering with the operation of the
telephone lines;
(e) Ensure that video lottery terminals are within the sight
and control of designated employees of the license gaming facility;
(f) Ensure that video lottery terminals are placed and remain
placed in the specific locations within the gaming facility that
have been approved by the commission. No video lottery terminal or
terminals at the gaming facility shall be relocated without the
prior approval of the commission;
(g) Monitor video lottery terminals to prevent access to or
play by persons who are under the age of twenty-one years or who
are visibly intoxicated;
(h) Maintain at all times sufficient change and cash in the
denominations accepted by the video lottery terminals;
(i) Provide no access by a player to an automated teller
machine (ATM) in the area of the gaming facility where video
lottery games are played;
(j) Pay for all credits won upon presentment of a valid
winning video lottery ticket;
(k) Report promptly to the manufacturer and the commission all
video lottery terminal malfunctions and notify the commission of
the failure of a manufacturer or service technician to provide
prompt service and repair of such terminals and associated
equipment;
(l) Install, post and display prominently at locations within
or about the licensed gaming facility signs, redemption information
and other promotional material as required by the commission; and
(m) Promptly notify the commission in writing of any breaks or
tears to any logic unit seals.
§29-25-32. Surcharge; Capital Reinvestment Fund.
(a) For all fiscal years beginning on or after July 1, 2009,
there shall be imposed a surcharge of ten percent against the share
of gross terminal income retained by the gaming facility as
provided by section twenty of this article.
(b) The Capital Reinvestment Fund is hereby created within the
Lottery Fund. The surcharge amount attributable to the historic
resort hotel shall be retained by the commission and deposited into
a separate capital reinvestment account for the historic resort hotel. For each dollar expended by the historic resort hotel for
capital improvements at the historic resort hotel, of any amenity
associated with the historic resort hotel's destination resort
facility operations, or at adjacent facilities owned by the
historic resort hotel having a useful life of seven or more years
and placed in service after April 1, 2009, the licensed gaming
facility shall receive one dollar in recoupment from its Capital
Reinvestment Fund account: If a historic resort hotel's unrecouped
capital improvements exceed its Capital Reinvestment Fund account
at the end of any fiscal year, the excess improvements may be
carried forward to seven subsequent fiscal years.
(c) Any moneys remaining in the historic resort hotel's
Capital Reinvestment Fund account at the end of any fiscal year
shall be deposited in the Historic Resort Hotel Fund.
§29-25-33. License to be a provider of management services.
(a)
License. -- The commission may issue a license to a person
providing management services under a management services contract
to a gaming facility when the commission determines that the person
meets the requirements of this section and any applicable rules of
the commission.
(b)
License qualifications. -- Each applicant who is an
individual and each individual who controls an applicant, as
provided in subsection (f), section two of this article, shall be
of good moral character, honesty and integrity and shall have the necessary experience and financial ability to successfully carry
out the functions of a management services provider. The commission
may adopt rules establishing additional requirements for an
authorized management services provider. The commission may accept
licensing by another jurisdiction, specifically determined by the
commission to have similar licensing requirements, as evidence the
applicant meets authorized management services provider licensing
requirements.
(c)
Management service provider specifications. -- An
applicant for a license to provide management services to a gaming
facility licensee shall demonstrate that the management services
that the applicant plans to offer to the gaming facility licensee
conform or will conform to standards established by rules of the
commission and applicable state law.
(d)
License application requirements. -- An applicant for a
license to provide management services to a gaming facility
licensee shall:
(1) Submit an application to the commission in the form
required by the commission including adequate information to serve
as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check
by the Criminal Identification Bureau of the West Virginia State
Police and the Federal Bureau of Investigation. The fingerprints
shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for
the release of information by the Criminal Investigation Bureau and
the Federal Bureau of Investigation. The commission may require any
applicant seeking the renewal of a license or permit to furnish
fingerprints for a national criminal records check by the Criminal
Identification Bureau of the West Virginia State Police and the
Federal Bureau of Investigation; and
(3) Pay to the commission a nonrefundable application fee for
deposit into the Historic Resort Hotel Fund in the amount of $100.
(e)
Authorization. -- A license to provide management services
to a gaming facility licensee authorizes the licensee to provide
management service to a gaming facility while the license is
active. The commission may by rule establish the conditions which
constitute an emergency under which the commission may issue
provisional licenses pending completion of final action on an
application.
(f)
Fees, expiration date and renewal. -- A licensed provider
of management services shall pay to the commission an annual
license fee of $100 for an initial term beginning prior to the date
of the provider's first contract with a gaming facility licensee
and continuing through the end of the twelfth month thereafter
whenever the licensee has paid the renewal fee and has continued to
comply with all applicable statutory and rule requirements. The
commission shall renew a license to provide management services to a gaming facility annually thereafter. A gaming facility licensee
may continue to use the management services provided by the
management services provider while that provider was licensed,
notwithstanding the expiration of the provider's license, unless
the commission finds the services provided are not conforming to
standards established by rule of the commission and applicable
state law.
§29-25-34. State ownership of West Virginia Lottery table games.
All West Virginia Lottery table games authorized by this
article shall be West Virginia lottery games owned by the State of
West Virginia. A gaming facility license granted to a historic
resort hotel by the commission pursuant to this article shall
include the transfer by the commission to the historic resort hotel
limited license rights in and to the commission's intellectual
property ownership of the West Virginia lottery games which
includes granting licensees limited lawful authority relating to
the conduct of lottery table games for consideration, within the
terms and conditions established pursuant to this article and any
rules promulgated under this article.
§29-25-35. Preemption.
No local law or rule providing any penalty, disability,
restriction, regulation or prohibition for operating a historic
resort hotel with West Virginia Lottery table games or supplying a
licensed gaming facility may be enacted and the provisions of this article preempt all regulations, rules, ordinances and laws of any
county or municipality in conflict with this article.
§29-25-36. Exemption from federal law.
Pursuant to Section 2 of chapter 1194, 64 Stat. 1134, 15 U. S.
C. §1172, approved January 2, 1951, the State of West Virginia,
acting by and through duly elected and qualified members of the
Legislature, does declare and proclaim that the state is exempt
from chapter 1194, 64 Stat. 1134, 15 U. S. C. §1171 to §1178.
§29-25-37. Game rules of play; disputes.
(a) As an agent of the commission authorized to operate West
Virginia Lottery table games, the gaming facility licensee shall
have written rules of play for each West Virginia Lottery table
game it operates that are approved by the commission before the
West Virginia Lottery table game is offered to the public. Rules of
play proposed by the gaming facility may be approved, amended or
rejected by the commission.
(b) All West Virginia Lottery table games shall be conducted
according to the specific rules of play approved by the commission.
All wagers and pay-offs of winning wagers shall be made according
to those rules of play, which shall establish any limitations
necessary to assure the vitality of West Virginia Lottery table
game operations.
(c) The gaming facility licensee shall make available in
printed form to any patron, upon request of the patron, the complete texts of the rules of play of any West Virginia Lottery
table games in operation at the gaming facility, pay-offs of
winning wagers and any other advice to the player required by the
commission.
(d) Patrons are considered to have agreed that the
determination of whether the patron is a valid winner is subject to
the game of play rules and, in the case of any dispute, will be
determined by the commission. The determination by the commission
shall be final and binding upon all patrons and shall not be
subject to further review or appeal.
§29-25-38. Shipment of gambling devices.
All shipments of gambling devices, including video lottery
machines, to the licensed gaming facility in this state, the
registering, recording and labeling of which have been completed by
the manufacturer or dealer thereof in accordance with Chapter 1194,
64 Stat. 1134, 15 U. S. C. §1171 to §1178, are legal shipments of
gambling devices into the State of West Virginia.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 575--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §29-22-29; to amend and reenact
§29-25-1, §29-25-2, §29-25-3, §29-25-5, §29-25-6, §29-25-8, §29-25-9, §29-25-11, §29-25-12, §29-25-13, §29-25-16, §29-25-17, §29-25-
18, §29-25-19, §29-25-20, §29-25-21, §29-25-22, §29-25-23, §29-25-
24, §29-25-25 and §29-25-26 of said code; and to amend said code by
adding thereto twelve new sections, designated §29-25-22a, §29-25-
28, §29-25-29, §29-25-30, §29-25-31, §29-25-32, §29-25-33, §29-25-
34, §29-25-35, §29-25-36, §29-25-37 and §29-25-38, all relating to
gaming at a historic resort hotel and pari-mutuel racetracks
generally; designating certain moneys as state moneys and
establishing audit provisions; updating and conforming provisions
for consistency purposes between hotel and racetracks; legislative
findings and intent; authorizing certain West Virginia lottery
games; modifying licensure requirements and fees therefor; renaming
State Gaming Fund the Historic Resort Hotel Fund; providing for
distribution of the Historic Resort Hotel Fund; creating formula
for renewal fee assessments; expanding licensees' authority to set
wagers with commission approval; altering maximum bets for video
lottery machines; redefining gross terminal income to allow and
account for promotional play at hotel and racetracks; authorizing
hotel to contract for management services with commission approval;
authorizing the hotel to lease certain services; creating the Human
Resource Benefit Fund; permissible expenditures; establishing Human
Resource Benefit Advisory Board and setting criteria for its
membership; powers and duties; authorizing certain complimentary
services; restricting who may enter the designated gaming area of the hotel to overnight guests, certain participants at hotel-based
events and residents; clarifying and specifying forfeiture of
property provisions; authorizing commission to operate slot
machines and video lottery games; establishing requirements for
video lottery terminals; establishing specific duties required of
the gaming facility; creating Capital Reinvestment Fund; imposing
surcharge against share of gross terminal income to be paid into
the Capital Reinvestment Fund; declaring all authorized games to be
owned by the state; preempting inconsistent county and municipal
ordinances or rules; limiting taxing authority; declaring exemption
from federal law to facilitate authorization of legal gaming;
establishing rules of play and dispute resolution; authorizing
shipment of gambling devices into state; modifying distribution of
revenue; license suspension and revocation; revising civil
penalties; authorizing emergency rulemaking; and establishing and
modifying criminal offenses and penalties.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 575, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: Boley--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 575) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Bowman, Browning,
Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: Boley--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 575) takes effect from
passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Saturday, April 11, 2009, at 11 a.m.
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