ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2550
(By Delegates Iaquinta, Fleischauer, Longstreth,
Stephens, Walker and Azinger)
[Passed March 10, 2011; in effect ninety days from passage.]
AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §18-10F-1 and §18-
10F-2, all relating to the enactment of the Interstate Compact
on Educational Opportunity for Military Children; establishing
the
West Virginia Council for Educational Opportunity for
Military Children; designating membership; and establishing
powers and duties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §18-10F-1 and §18-10F-
2, all to read as follows:
ARTICLE 10F. INTERSTATE COMPACT ON EDUCATIONAL OPPORTUNITY FOR
MILITARY CHILDREN.
§
18-10F-1. Interstate Compact on Educational Opportunity for
Military Children.
This article is known and may be cited as the "Interstate
Compact on Educational Opportunity for Military Children".
§18-10F-2. Enactment of Interstate Compact.
The Interstate Compact on Educational Opportunity for Military
Children is hereby enacted into law and entered into by the State
of West Virginia with any and all states legally joining therein in
accordance with its terms, in the form substantially as follows:
INTERSTATE COMPACT ON EDUCATIONAL
OPPORTUNITY FOR MILITARY CHILDREN
ARTICLE I. PURPOSE
It is the purpose of this compact to remove barriers to
educational success imposed on children of military families
because of frequent moves and deployment of their parents by:
(a) Facilitating the timely enrollment of children of military
families and ensuring that they are not placed at a disadvantage
due to difficulty in the transfer of education records from a
previous school district or variations in entrance or age
requirements;
(b) Facilitating the student placement process through which
children of military families are not disadvantaged by variations
in attendance requirements, scheduling, sequencing, grading, course
content or assessment;
(c) Facilitating the qualification and eligibility for
enrollment, educational programs, and participation in
extracurricular academic, athletic and social activities;
(d) Facilitating the on-time graduation of children of military families;
(e) Providing for the promulgation and enforcement of
administrative rules implementing the provisions of this compact;
(f) Providing for the uniform collection and sharing of
information between and among member states, schools and military
families under this compact;
(g) Promoting coordination between this compact and other
compacts affecting military children; and
(h) Promoting flexibility and cooperation between the
educational system, parents and students in order to achieve
educational success for students.
ARTICLE II. DEFINITIONS
As used in this article and compact, unless the context
clearly requires a different meaning:
(a) "Active duty" means full-time duty status in any of the
active uniformed services of the United States, including service
in the National Guard and Reserve pursuant to active duty orders in
accordance with 10 U.S.C. Sections 1209 and 1211;
(b) "Child of a military family" means any school-aged child
enrolled in any of grades kindergarten through twelfth who is in
the household of an active duty uniformed services member;
(c) "Compact commissioner" means the voting representative of
a compacting state appointed pursuant to Article VIII of this
compact;
(d) "Deployment" means the time period beginning one month
prior to a uniformed services member's departure from his or her
home station on military orders and ending six months after return
to his or her home station;
(e) "Education records" means all documents, files, data and
official records directly related to a student and maintained by a
school or county board. This includes all material kept in the
student's cumulative file, such as but not limited to generally-
identifying data, attendance records, academic work completion
records, achievement records, evaluative test results, health data,
disciplinary records, test protocols, and individualized education
program or service records;
(f) "Extracurricular activities" means voluntary activities
sponsored by a school, a county board or an organization sanctioned
by a county board or the state board of education. Extracurricular
activities include, but are not limited to, preparation for and
involvement in public performances, contests, athletic
competitions, demonstrations, displays, organizations and clubs;
(g) "Interstate Commission on Educational Opportunity for
Military Children" or "Interstate Commission" means the Commission
that is created by Article IX of this compact;
(h) "County board" means a county board of education, which is
the public entity legally constituted by this state as an
administrative agency to provide control of and direction for
grades kindergarten through twelfth in the public schools in the
county in which it operates;
(i) "Member state" means a state that has enacted this
compact;
(j) "Military installation" means a base, camp, post, station,
yard, center, homeport facility for any ship, or other facility
under the jurisdiction of the Department of Defense, including any
leased facility, which is located within any of the several states,
the District of Columbia, the Commonwealth of Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, the Northern Marianas Islands
or any other United States Territory. "Military installation" does
not include any facility used primarily for civil works, rivers and
harbors projects, or flood control projects;
(k) "Non-member state" means a state that has not enacted this
compact;
(l) "Receiving state" means a state to which a child of a
military family is sent, brought, or caused to be sent or brought;
(m) "Rule" means a written statement by the Interstate
Commission which:
(1) Is promulgated pursuant to Article XII of this compact;
(2) Is of general applicability;
(3) Implements, interprets or prescribes a policy or provision
of this compact, or an organizational, procedural, or practice
requirement of the Interstate Commission;
(4) Has the force and effect of statutory law in a member
state; and
(5) May be amended, repealed, or suspended by act of the
Interstate Commission;
(n) "Sending state" means a state from which a child of a
military family is sent, brought, or caused to be sent or brought;
(o) "State" means a state of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, the Northern Marianas Islands and
any other United States Territory;
(p) "Student" means a child of a military family who is
formally enrolled in any of grades kindergarten through twelfth and
for whom a county board receives public funding;
(q) "Transition" means:
(1) The formal and physical process of transferring from one
school to another; or
(2) The period of time during which a student moves from one
school in a sending state to another school in the receiving state;
(r) "Uniformed services" means the Army, Navy, Air Force,
Marine Corps, Coast Guard, and the Commissioned Corps of the
National Oceanic and Atmospheric Administration, and Public Health
Services;
(s) "Veteran" means a person who performed active duty service
and was discharged or released therefrom under conditions other
than dishonorable; and
(t) "
The West Virginia Council for Educational Opportunity for
Military Children
" or "West Virginia Council" means the state
coordinating council established in Article VIII of this compact.
ARTICLE III. APPLICABILITY
(a) This compact applies to:
(1) Each county board of education; and
(2) The children of:
(A) Active duty members of the uniformed services as defined
in this compact, including members of the National Guard and
Reserve on active duty orders pursuant to 10 U.S.C. Sections 1209
and 1211;
(B) Members or veterans of the uniformed services who are
severely injured and medically discharged or retired for a period
of one year after medical discharge or retirement; and
(C) Members of the uniformed services who die on active duty
or as a result of injuries sustained on active duty for a period of
one (1) year after death.
(b) Except as provided in subsection (a) of this Article III,
this compact does not apply to the children of:
(1) Inactive members of the National Guard or military
reserves;
(2) Retired members of the uniformed services;
(3) Veterans of the uniformed services;
(4) Other United States Department of Defense personnel; nor
(5) Any other federal agency civilian or contract employees
not defined as active duty members of the uniformed services.
ARTICLE IV. EDUCATIONAL RECORDS & ENROLLMENT
(a)
Unofficial or "hand-carried" education records --
In the event that official education records cannot be
released to a student's parents or legal guardians for the purpose
of transfer, the custodian of the records in the sending state
shall prepare and furnish to the parents a complete set of
unofficial educational records containing uniform information as
determined by the Interstate Commission. As quickly as possible
upon receipt of the unofficial education records by a school in the
receiving state, the school shall enroll and appropriately place
the student based on the information provided in the unofficial
records pending validation by the official records.
(b)
Official education records/transcripts --
Simultaneous with the enrollment and conditional placement of
a student, the school in the receiving state shall request the
student's official education records from the school in the sending
state. Upon receipt of this request, the school in the sending
state shall process and furnish the official education records to
the school in the receiving state within ten days or such other
time period as is determined reasonable under the rules promulgated
by the Interstate Commission.
(c)
Immunizations --
(1) A county board shall allow a student thirty days from the
date of enrollment to obtain any required immunizations, or such
other time period as is determined reasonable under the rules
promulgated by the Interstate Commission.
(2) In any case where a series of immunizations is required,
the student shall obtain the initial vaccination within thirty days of enrollment, or such other time period as is determined
reasonable under the rules promulgated by the Interstate
Commission.
(d)
Enrollment at current grade level --
(1) A student shall be permitted to enroll in the grade level
in this state, including kindergarten, which is commensurate with
the grade level in which he or she was enrolled in the sending
state at the time of transition, regardless of his or her age.
(2) A student that has satisfactorily completed the
prerequisite grade level in the sending state is eligible for
enrollment in the next highest grade level in this state,
regardless of his or her age.
ARTICLE V. PLACEMENT & ATTENDANCE
(a)
Course placement --
(1) When a student transfers to this state before or during
the school year, the school in this state shall initially place the
student in educational courses based on the courses in which he or
she was enrolled in the sending state, educational assessments
conducted at the school in the sending state, or both, if the
courses are offered at the school to which the student is
transferring. This course placement provision includes, but is not
limited to Honors, International Baccalaureate, Advanced Placement,
vocational, technical and career pathways courses.
(2) A school shall give paramount consideration to continuing a student's academic program from the previous school, and
promoting placement in academically and career-challenging courses,
when considering course placement.
(3) A school is not precluded from performing subsequent
evaluations to ensure appropriate placement and continued
enrollment of the student in any course.
(b)
Educational program placement --
When a student transfers to this state, the school shall
initially place the student in educational programs based on
current educational assessments conducted at the school in the
sending state or participation or placement in like programs in the
sending state. Such programs include, but are not limited to
gifted and talented programs and English as a second language
(ESL). A school is not precluded from performing subsequent
evaluations to ensure appropriate placement of the student.
(c)
Special education services --
(1) In compliance with the federal requirements of the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A.
Section 1400 et seq, a school in this state shall initially provide
comparable services to a student with disabilities based on his or
her current Individualized Education Program (IEP); and
(2) In compliance with the requirements of Section 504 of the
Rehabilitation Act, 29 U.S.C.A. Section 794 (Section 504), and with
Title II of the Americans with Disabilities Act, 42 U.S.C.A.
Sections 12131-12165 (Title II), any school in this state shall
make reasonable accommodations and modifications to address the needs of incoming students with disabilities, subject to an
existing Section 504 or Title II plan, to provide the student with
equal access to education. The school is not precluded from
performing subsequent evaluations to ensure appropriate placement
of the student.
(d)
Placement flexibility --
County board administrative officials have flexibility in
waiving course and program prerequisites, or other preconditions
for placement in courses or programs offered under the authority of
the county board.
(e)
Absence as related to deployment activities --
A student whose parent or legal guardian is an active duty
member of the uniformed services and has been called to duty for,
is on leave from, or immediately returned from deployment to a
combat zone or combat support posting, shall be granted additional
excused absences at the discretion of the county superintendent to
visit with his or her parent or legal guardian relative to such
leave or deployment of the parent or guardian.
ARTICLE VI. ELIGIBILITY
(a)
Eligibility for enrollment --
(1) Special power of attorney, relative to the guardianship of
a child of a military family and executed under applicable law is
sufficient for the purposes of enrollment and all other actions
requiring parental participation and consent.
(2) A county board may not charge local tuition to a
transitioning military child placed in the care of a noncustodial
parent or other person standing in loco parentis who lives in a
school district other than that of the custodial parent.
(3) A transitioning military child, placed in the care of a
noncustodial parent or other person standing in loco parentis who
lives in a school district other than that of the custodial parent,
may continue to attend the school in which he or she was enrolled
while residing with the custodial parent.
(b)
Eligibility for extracurricular participation --
The State Board of Education and county boards shall
facilitate the opportunity for transitioning military children to
be included in extracurricular activities, regardless of
application deadlines, to the extent the children are otherwise
qualified.
ARTICLE VII. GRADUATION
In order to facilitate the on-time graduation of children of
military families the State Board of Education and each county
board shall incorporate the following procedures:
(a)
Waiver requirements --
County board administrative officials shall either waive
specific courses required for graduation if a student has
satisfactorily completed similar course work in another local
education agency, or provide reasonable justification for denial. If a waiver is not granted to a student who would qualify to
graduate from the sending school, the county board shall provide an
alternative means of acquiring required coursework so that the
student may graduate on time.
(b)
Exit exams --
Any school in this state shall accept:
(1) Exit or end-of-course exams required for graduation from
the sending state;
(2) National norm-referenced achievement tests; or
(3) Alternative testing, in lieu of testing requirements for
graduation in the receiving state. In the event that the
alternatives in this subsection cannot be accommodated by a school
for a student transferring in his or her senior year, then the
provisions of subsection (c) of Article VII of this compact apply.
(c)
Transfers during senior year --
If a student transferring at the beginning of or during his or
her senior year is ineligible to graduate from a school in this
state after all alternatives have been considered, the county board
and the local education agency in the sending state shall ensure
that the student receives a diploma from the sending state, if the
student meets the graduation requirements of the local education
agency in the sending state. In the event that one of the states
in question is not a member of this compact, the member state shall
use best efforts to facilitate the on-time graduation of the
student in accordance with subsections (a) and (b) of this Article
VII.
ARTICLE VIII. STATE COORDINATION
(a) The West Virginia Council for Educational Opportunity for
Military Children
is hereby established for the purpose of
coordinating entities in this state regarding participation in the
Interstate Compact on Educational Opportunity for Military
Children.
(b) Membership of the Council consists of at least six members
as follows:
(1) The State Superintendent of Schools;
(2) The superintendent of a county board in the state which
has a high concentration of military children, appointed by the
Governor. If the Governor determines there is not a county school
district that contains a high concentration of military children,
he or she may appoint a superintendent from any county school
district to represent county boards on the State Council;
(3) An individual representing a military installation in this
state appointed by the Governor by and with the advice and consent
of the Senate
. This member serves a term of four years, except
that the term of the individual initially appointed expires June
30, 2015. Each subsequent term begins on July 1 in the year of
appointment.
(4) An individual representing the executive branch of
government, appointed by the Governor;
(5) One member of the West Virginia Senate, appointed by the
President of the West Virginia Senate; and
(6) One member of the West Virginia House of Delegates,
appointed by the Speaker of the West Virginia House of Delegates.
(c) The Governor shall appoint a Compact Commissioner who is
responsible for administering and managing the state's
participation in the compact. The Governor may select the
Commissioner from members appointed to the Council as provided in
subsection (b) of this Article VIII, or may appoint another
individual to serve in this capacity. A individual who is not
already a full voting member of the Council becomes an ex officio
member of the Council if appointed as Commissioner.
(d) The West Virginia Council has and may exercise all powers
necessary or appropriate to carry out and effectuate the purpose
and intent of this compact, including, but not limited to the
following:
(1) Facilitate c
oordination among state agencies and
governmental entities of West Virginia, including county boards and
military installations, concerning the state's participation in,
and compliance with, this compact and Interstate Commission
activities; and
(2) Appoint or designate a military family education liaison
to assist military families and the state in facilitating
implementation of the compact. This individual becomes an ex
officio member of the West Virginia Council if he or she is not
already a full voting member of the Council when so appointed or
designated.
ARTICLE IX. INTERSTATE COMMISSION ON EDUCATIONAL
OPPORTUNITY FOR MILITARY CHILDREN
(a) The member states hereby create the "Interstate Commission
on Educational Opportunity for Military Children." The activities
of the Interstate Commission are the formation of public policy and
are a discretionary state function.
(b) The Interstate Commission:
(1) Is a body corporate and joint agency of the member states
and has all the responsibilities, powers and duties set forth
herein, and such additional powers as may be conferred upon it by
a subsequent concurrent action of the respective Legislatures of
the member states in accordance with the terms of this compact;
(2) Consists of one Interstate Commission voting
representative from each member state who is that state's Compact
Commissioner.
(A) Each member state represented at a meeting of the
Interstate Commission is entitled to one vote.
(B) A majority of the total member states constitutes a quorum
for the transaction of business, unless a larger quorum is required
by the bylaws of the Interstate Commission.
(C) A representative may not delegate a vote to another member
state. In the event a Compact Commissioner is unable to attend a
meeting of the Interstate Commission, the Governor or State Council
of the Compact Commissioner's state may delegate voting authority
to another person from that state for a specified meeting.
(D) The bylaws may provide for meetings of the Interstate
Commission to be conducted by telecommunication or electronic
communication;
(3) Consists of ex-officio, nonvoting representatives who are
members of interested organizations. Such ex-officio members, as
defined in the bylaws, may include, but are not limited to, members
of the representative organizations of military family advocates,
local education agency officials, parent and teacher groups, the
United States Department of Defense, the Education Commission of
the States, the Interstate Agreement on the Qualification of
Educational Personnel, and other interstate compacts affecting the
education of children of military members;
(4) Meets at least once each calendar year. The chairperson
may call additional meetings and, upon the request of a simple
majority of the member states, shall call additional meetings;
(5) Establishes an executive committee, whose members shall
include the officers of the Interstate Commission and such other
members of the Interstate Commission as established in the bylaws.
Each member of the executive committee serves a one year term.
Each member of the executive committee is entitled to one vote.
The executive committee has the power to act on behalf of the
Interstate Commission, with the exception of rulemaking, during
periods when the Interstate Commission is not in session. The
executive committee shall oversee the daily activities of the
administration of the compact, including enforcement and compliance
with the provisions of the compact, its bylaws and rules, and such other duties as it determines are necessary. A representative of
the United States Department of Defense serves as an ex-officio,
nonvoting member of the executive committee;
(6) Establishes bylaws and rules that provide for conditions
and procedures under which the Interstate Commission makes its
information and official records available to the public for
inspection or copying. The Interstate Commission may exempt from
disclosure information or official records to the extent they would
adversely affect personal privacy rights or proprietary interests;
(7) Gives public notice of all meetings. All meetings shall
be open to the public, except as set forth in the rules or as
otherwise provided in the compact. The Interstate Commission and
its committees may close a meeting, or portion thereof, where it
determines by two-thirds vote that an open meeting would be likely
to:
(A) Relate solely to the Interstate Commission's internal
personnel practices and procedures;
(B) Disclose matters specifically exempted from disclosure by
federal and state statute;
(C) Disclose trade secrets or commercial or financial
information which is privileged or confidential;
(D) Involve accusing a person of a crime, or formally
censuring a person;
(E) Disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal
privacy;
(F) Disclose investigative records compiled for law
enforcement purposes; or
(G) Specifically relate to the Interstate Commission's
participation in a civil action or other legal proceeding;
(8) Causes its legal counsel or designee to certify that a
meeting may be closed, and reference each relevant exemptable
provision for any meeting or portion of a meeting which is closed
pursuant to this provision. The Interstate Commission shall
maintain a minute record of each meeting which shall fully and
clearly describe all matters discussed in the meeting. The minute
record shall provide a full and accurate summary of actions taken,
and the reasons therefore, including a description of the views
expressed and the record of a roll call vote. All documents
considered in connection with an action shall be identified in the
minute record. All minutes and documents of a closed meeting shall
remain under seal, subject to release by a majority vote of the
Interstate Commission.
(9) Collects standardized data concerning the educational
transition of the children of military families under this compact
as directed through its rules. The rules shall specify the data to
be collected, the means of collection and data exchange and
reporting requirements. Such methods of data collection, exchange
and reporting shall, in so far as is reasonably possible, conform
to current technology and coordinate its information functions with
the appropriate custodian of records as identified in the bylaws
and rules; and
(10) Creates a process that permits military officials,
education officials and parents to inform the Interstate Commission
if and when there are alleged violations of the compact or its
rules or when issues subject to the jurisdiction of the compact or
its rules are not addressed by the state or local education agency.
This subdivision does not create a private right of action against
the Interstate Commission or any member state.
ARTICLE X. POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The Interstate Commission has the following powers:
(a) To provide for dispute resolution among member states;
(b) To promulgate rules and take all necessary actions to
effect the goals, purposes and obligations as enumerated in this
compact. The rules have the force and effect of statutory law and
are binding in the compact states to the extent and in the manner
provided in this compact;
(c) To issue, upon request of a member state, advisory
opinions concerning the meaning or interpretation of the compact,
its bylaws, rules and actions;
(d) To enforce compliance with the compact provisions, the
rules promulgated by the Interstate Commission, and the bylaws,
using all necessary and proper means, including but not limited to
the use of judicial process;
(e) To establish and maintain offices which shall be located
within one or more of the member states;
(f) To purchase and maintain insurance and bonds;
(g) To borrow, accept, hire or contract for services of
personnel;
(h) To establish and appoint committees including, but not
limited to, an executive committee as required by Article IX of
this compact, which have the power to act on behalf of the
Interstate Commission in carrying out its powers and duties
hereunder;
(i) To elect or appoint such officers, attorneys, employees,
agents or consultants, and to fix their compensation, define their
duties and determine their qualifications; and to establish the
Interstate Commission's personnel policies and programs relating to
conflicts of interest, rates of compensation, and qualifications of
personnel;
(j) To accept any and all donations and grants of money,
equipment, supplies, materials, and services, and to receive,
utilize, and dispose of such;
(k) To lease, purchase, accept contributions or donations of,
or otherwise to own, hold, improve or use any property, real,
personal, or mixed;
(l) To sell, convey, mortgage, pledge, lease, exchange,
abandon, or otherwise dispose of any property, real, personal or
mixed;
(m) To establish a budget and make expenditures;
(n) To adopt a seal and bylaws governing the management and
operation of the Interstate Commission;
(o) To report annually to the Legislatures, Governors,
judiciary, and state councils of the member states concerning the
activities of the Interstate Commission during the preceding year.
Such reports also shall include any recommendations that may have
been adopted by the Interstate Commission;
(p) To coordinate education, training and public awareness
regarding the compact, its implementation and operation for
officials and parents involved in such activity;
(q) To establish uniform standards for reporting, collecting
and exchanging data;
(r) To maintain corporate books and records in accordance with
the bylaws;
(s) To perform such functions as may be necessary or
appropriate to achieve the purposes of this compact; and
(t) To provide for the uniform collection and sharing of
information between and among member states, schools and military
families under this compact.
ARTICLE XI. ORGANIZATION AND OPERATION OF THE
INTERSTATE COMMISSION
(a) The Interstate Commission shall, by a majority of the
members present and voting, within twelve months after the first
Interstate Commission meeting, adopt bylaws to govern its conduct
as may be necessary or appropriate to carry out the purposes of the
compact, including, but not limited to:
(1) Establishing the fiscal year of the Interstate Commission;
(2) Establishing an executive committee, and such other
committees as may be necessary;
(3) Providing for the establishment of committees and for
governing any general or specific delegation of authority or
function of the Interstate Commission;
(4) Providing reasonable procedures for calling and conducting
meetings of the Interstate Commission, and ensuring reasonable
notice of each meeting;
(5) Establishing the titles and responsibilities of the
officers and staff of the Interstate Commission;
(6) Providing a mechanism for concluding the operations of the
Interstate Commission and the returning surplus funds that may
exist upon termination of the compact after the payment and
reserving of all of its debts and obligations; and
(7) Providing start-up rules for initial administration of the
compact.
(b) The Interstate Commission shall, by a majority of the
members, elect annually from among its members a chairperson, a
vice-chairperson, and a treasurer, each of whom shall have such
authority and duties as may be specified in the bylaws. The
chairperson or, in the chairperson's absence or disability, the
vice-chairperson, shall preside at all meetings of the Interstate
Commission. The officers so elected serve without compensation or
remuneration from the Interstate Commission. Subject to the
availability of budgeted funds, the officers shall be reimbursed for ordinary and necessary costs and expenses incurred by them in
the performance of their responsibilities as officers of the
Interstate Commission.
(c)
Executive Committee, Officers and Personnel --
(1) The executive committee has such authority and duties as
may be set forth in the bylaws, including but not limited to:
(A) Managing the affairs of the Interstate Commission in a
manner consistent with the bylaws and purposes of the Interstate
Commission;
(B) Overseeing an organizational structure within, and
appropriate procedures for the Interstate Commission to provide for
the creation of rules, operating procedures, and administrative and
technical support functions; and
(C) Planning, implementing, and coordinating communications
and activities with other state, federal and local government
organizations in order to advance the goals of the Interstate
Commission.
(2) The executive committee may, subject to the approval of
the Interstate Commission, appoint or retain an executive director
for such period, upon such terms and conditions and for such
compensation, as the Interstate Commission may deem appropriate.
The executive director serves as secretary to the Interstate
Commission, but is not a Member of the Interstate Commission. The
executive director shall hire and supervise such other persons as
may be authorized by the Interstate Commission.
(d) The Interstate Commission's executive director and its employees are immune from suit and liability, either personally or
in their official capacity, for a claim for damage to or loss of
property or personal injury or other civil liability caused or
arising out of or relating to an actual or alleged act, error, or
omission that occurred, or that such person had a reasonable basis
for believing occurred, within the scope of Interstate Commission
employment, duties, or responsibilities. The executive director
and employees are not protected from suit or liability for damage,
loss, injury, or liability caused by the intentional or willful and
wanton misconduct of such person.
(1) The liability of the Interstate Commission's executive
director and employees or Interstate Commission representatives,
acting within the scope of employment or duties for acts, errors,
or omissions occurring within his or her state may not exceed the
limits of liability set forth under the constitution and laws of
that state for state officials, employees, and agents. The
Interstate Commission is considered to be an instrumentality of the
states for the purposes of any such action. This subsection does
not protect the executive director or employees from suit or
liability for damage, loss, injury, or liability caused by his or
her intentional or willful and wanton misconduct.
(2) The Interstate Commission shall defend the executive
director and its employees and, subject to the approval of the
Attorney General or other appropriate legal counsel of the member
state represented by an Interstate Commission representative, shall
defend such Interstate Commission representative in any civil action seeking to impose liability arising out of an actual or
alleged act, error or omission that occurred within the scope of
Interstate Commission employment, duties or responsibilities, or
that the defendant had a reasonable basis for believing occurred
within the scope of Interstate Commission employment, duties, or
responsibilities, provided that the actual or alleged act, error,
or omission did not result from intentional or willful and wanton
misconduct on the part of such person.
(3) To the extent not covered by the state involved, member
state, or the Interstate Commission, the representatives or
employees of the Interstate Commission shall be held harmless in
the amount of a settlement or judgment, including attorney's fees
and costs, obtained against the individual arising out of an actual
or alleged act, error, or omission that occurred within the scope
of Interstate Commission employment, duties, or responsibilities,
or that the individual had a reasonable basis for believing
occurred within the scope of Interstate Commission employment,
duties, or responsibilities, provided that the actual or alleged
act, error, or omission did not result from intentional or willful
and wanton misconduct on the part of the individual.
ARTICLE XII. RULEMAKING FUNCTIONS
OF THE INTERSTATE COMMISSION
(a)
Rulemaking Authority --
The Interstate Commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of this
compact. Notwithstanding the foregoing, in the event the
Interstate Commission exercises its rulemaking authority in a
manner that is beyond the scope of the purposes of this Act, or the
powers granted hereunder, then such an action by the Interstate
Commission is invalid and has no force nor effect.
(b)
Rulemaking Procedure --
Rules shall be made pursuant to a rulemaking process that
substantially conforms to the "Model State Administrative Procedure
Act," of 1981 Act, Uniform Laws Annotated, Vol. 15, p.1 (2000) as
amended, as may be appropriate to the operations of the Interstate
Commission.
(c) Not later than thirty days after a rule is promulgated,
any person may file a petition for judicial review of the rule.
Filing such a petition does not stay or otherwise prevent the rule
from becoming effective unless the court finds that the petitioner
has a substantial likelihood of success. The court shall give
deference to the actions of the Interstate Commission consistent
with applicable law and may not find the rule to be unlawful if the
rule represents a reasonable exercise of the Interstate
Commission's authority.
(d) If a majority of the Legislatures of the compacting states
rejects a rule by enactment of a statute or resolution in the same
manner used to adopt the compact, then that rule has no further
force nor effect in any compacting state.
ARTICLE XIII. OVERSIGHT, ENFORCEMENT,
AND DISPUTE RESOLUTION
(a)
Oversight --
(1) The executive, legislative and judicial branches of state
government in each member state shall enforce this compact and
shall take all actions necessary and appropriate to effectuate the
compact's purposes and intent. The provisions of this compact and
the rules promulgated hereunder shall have standing as statutory
law.
(2) All courts shall take judicial notice of this compact and
the rules in any judicial or administrative proceeding in a member
state pertaining to the subject matter of this compact which may
affect the powers, responsibilities or actions of the Interstate
Commission.
(3) The Interstate Commission is entitled to receive all
service of process in any such proceeding, and has standing to
intervene in the proceeding for all purposes. Failure to provide
service of process to the Interstate Commission renders a judgment
or order void as to the Interstate Commission, this compact or
promulgated rules.
(b)
Default, Technical Assistance, Suspension and Termination
--
If the Interstate Commission determines that a member state
has defaulted in the performance of its obligations or
responsibilities under this compact, or the bylaws or promulgated rules, the Interstate Commission shall:
(1) Provide written notice to the defaulting state and other
member states, of the nature of the default, the means of curing
the default and any action taken by the Interstate Commission. The
Interstate Commission shall specify the conditions by which the
defaulting state must cure its default; and
(2) Provide remedial training and specific technical
assistance regarding the default.
(3) If the defaulting state fails to cure the default, the
defaulting state shall be terminated from the compact upon an
affirmative vote of a majority of the member states and all rights,
privileges and benefits conferred by this compact shall be
terminated from the effective date of termination. A cure of the
default does not relieve the offending state of obligations or
liabilities incurred during the period of the default.
(4) Suspension or termination of membership in the compact may
be imposed only after all other means of securing compliance have
been exhausted. Notice of intent to suspend or terminate shall be
given by the Interstate Commission to the Governor, the majority
and minority leaders of the defaulting state's Legislature, and
each of the member states.
(5) The state which has been suspended or terminated is
responsible for all assessments, obligations and liabilities
incurred through the effective date of suspension or termination
including obligations, the performance of which extends beyond the
effective date of suspension or termination.
(6) The Interstate Commission does not bear any costs relating
to any state that has been found to be in default or which has been
suspended or terminated from the compact, unless otherwise mutually
agreed upon in writing between the Interstate Commission and the
defaulting state.
(7) The defaulting state may appeal the action of the
Interstate Commission by petitioning the U.S. District Court for
the District of Columbia or the federal district where the
Interstate Commission has its principal offices. The prevailing
party shall be awarded all costs of such litigation including
reasonable attorney's fees.
(c)
Dispute Resolution --
(1) The Interstate Commission shall attempt, upon the request
of a member state, to resolve disputes which are subject to the
compact and which may arise among member states and between member
and nonmember states.
(2) The Interstate Commission shall promulgate a rule
providing for both mediation and binding dispute resolution for
disputes as appropriate.
(d)
Enforcement --
(1) The Interstate Commission, in the reasonable exercise of
its discretion, shall enforce the provisions and rules of this
compact.
(2) The Interstate Commission may by majority vote of the
members initiate legal action in the United State District Court
for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate
Commission has its principal offices, to enforce compliance with
the provisions of the compact, its promulgated rules and bylaws,
against a member state in default. The relief sought may include
both injunctive relief and damages. In the event judicial
enforcement is necessary the prevailing party shall be awarded all
costs of such litigation including reasonable attorney's fees.
(3) The remedies herein are not the exclusive remedies of the
Interstate Commission. The Interstate Commission may avail itself
of any other remedies available under state law or the regulation
of a profession.
ARTICLE XIV. FINANCING OF THE INTERSTATE COMMISSION
(a) The Interstate Commission shall pay, or provide for the
payment of the reasonable expenses of its establishment,
organization and ongoing activities.
(b) The Interstate Commission may levy on and collect an
annual assessment from each member state to cover the cost of the
operations and activities of the Interstate Commission and its
staff which must be in a total amount sufficient to cover the
Interstate Commission's annual budget as approved each year. The
aggregate annual assessment amount shall be allocated based upon a
formula to be determined by the Interstate Commission, which shall
promulgate a rule binding upon all member states.
(c) The Interstate Commission may not incur obligations of any kind prior to securing the funds adequate to meet the same; nor may
the Interstate Commission pledge the credit of any of the member
states, except by and with the authority of the member state.
(d) The Interstate Commission shall keep accurate accounts of
all receipts and disbursements. The receipts and disbursements of
the Interstate Commission are subject to the audit and accounting
procedures established under its bylaws. However, all receipts and
disbursements of funds handled by the Interstate Commission shall
be audited annualy by a certified or licensed public accountant and
the report of the audit shall be included in and become part of the
annual report of the Interstate Commission.
ARTICLE XV. MEMBER STATES, EFFECTIVE DATE AND AMENDMENT
(a) Any state is eligible to become a member state.
(b) This compact became effective and binding upon legislative
enactment of the compact into law by ten states in July 2008. It
becomes effective and binding as to any other member state upon
enactment of the compact into law by that state. The Governors of
nonmember states or their designees shall be invited to participate
in the activities of the Interstate Commission on a nonvoting basis
prior to adoption of the compact by all states.
(c) The Interstate Commission may propose amendments to the
compact for enactment by the member states. An amendment does not
become effective and binding upon the Interstate Commission and the
member states unless and until it is enacted into law by unanimous consent of the member states.
ARTICLE XVI. WITHDRAWAL AND DISSOLUTION
(a)
Withdrawal --
(1) Once effective, the compact continues in force and remains
binding upon each member state. A member state may withdraw from
the compact upon repealing the specific statute that enacted the
compact into law.
(2) Withdrawal from the compact occurs by repeal of the
enacting statute, but withdrawal does not take effect until one
year after the effective date of the repealing legislation and
until written notice of the withdrawal has been given by the
withdrawing state to the Governor of each other member state.
(3) The withdrawing state shall immediately notify the
chairperson of the Interstate Commission in writing upon the
introduction of any legislation to repeal this compact in the
withdrawing state. The Interstate Commission shall notify the
other member states of the withdrawing state's potential to
withdraw within sixty days of receiving notice.
(4) The withdrawing state is responsible for all assessments,
obligations and liabilities incurred through the effective date of
withdrawal, including obligations, the performance of which extend
beyond the effective date of withdrawal.
(5) Reinstatement following withdrawal of a member state shall
occur if the withdrawing state reenacts the compact or upon such later date as may be determined by the Interstate Commission.
(b)
Dissolution of Compact --
(1) This compact shall dissolve effective upon the date of the
withdrawal or default of any member state which reduces the
membership in the compact to one member state.
(2) Upon the dissolution of this compact, the compact becomes
null and void and is of no further force or effect, and the
business and affairs of the Interstate Commission shall be
concluded and surplus funds shall be distributed in accordance with
the bylaws.
ARTICLE XVII. SEVERABILITY AND CONSTRUCTION
(a) The provisions of this compact are severable, and if any
phrase, clause, sentence or provision is deemed unenforceable, the
remaining provisions of the compact are enforceable.
(b) The provisions of this compact shall be liberally
construed to effectuate its purposes.
(c) Nothing in this compact prohibits the applicability of any
other interstate compact to which the states are members.
ARTICLE XVIII. BINDING EFFECT OF COMPACT AND OTHER LAWS
(a)
Other Laws --
(1) Nothing in this compact prevents the enforcement of any
other law of a member state that is not inconsistent with this compact.
(2) All member states' laws conflicting with this compact are
superseded to the extent of the conflict.
(b)
Binding Effect of the Compact --
(1) All lawful actions of the Interstate Commission, including
all rules and bylaws promulgated by the Interstate Commission, are
binding upon the member states.
(2) All agreements between the Interstate Commission and the
member states are binding in accordance with their terms.
(3) In the event any provision of this compact exceeds the
constitutional limits imposed on the Legislature of any member
state, that provision is ineffective to the extent of the conflict
with the constitutional provision in question in that member state.