ENGROSSED
H. B. 2891
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced; referred to the
Committee on Government Organization then Finance.]
A BILL to
repeal §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5,
§5-1B-6, §5-1B-7 and §5-1B-8 of the code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4,
§5A-6-5, §5A-6-6, §5A-6-7 and §5A-6-8; to amend and reenact
§5A-7-4 of said code; to amend and reenact §5A-8-15 of said
code; to amend and reenact §5B-3-4 and §5B-3-5 of said code;
to amend and reenact §5F-2-2 of said code; and to amend and
reenact §11-10A-6 and §11-10A-7 of said code, all relating to
the reorganization of the executive branch of state
government; transferring the Office of Technology from the
Office of the Governor to the Department of Administration;
providing that the Director of Information Services and
Communications Division shall report to the Chief Technology
Officer; providing that the Director of Information Services
and Communications Division shall develop and maintain an information systems disaster recovery system; revising the
membership of the Records Management and Preservation Act;
limiting the time period for department secretaries to
transfer funds within their respective departments; requiring
secretaries of departments to cooperate with the Office of
Pharmaceutical Advocate in purchasing prescription drugs;
modifying the term of the chief administrative law judge of
the Office of Tax Appeals; and providing that the Governor has
the authority to appoint two administrative law judges to the
Office of Tax Appeals.
Be it enacted by the Legislature of West Virginia:
That §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6,
§5-1B-7 and §5-1B-8 of the code of West Virginia, 1931, as amended,
be repealed; that said code be amended by adding thereto a new
article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5,
§5A-6-6, §5A-6-7 and §5A-6-8; that §5A-7-4 of said code be amended
and reenacted; that §5A-8-15 of said code be amended and reenacted;
that §5B-3-4 and §5B-3-5 of said code be amended and reenacted;
that §5F-2-2 of said code be amended and reenacted; and that §11-
10A-6 and 11-10A-7 of said code be amended and reenacted, all to
read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 6. OFFICE OF TECHNOLOGY
§5A-6-1. Findings and purposes.
The Legislature finds and declares that information technology
is essential to finding practical solutions to the everyday problems of government, and that the management goals and purposes
of government are furthered by the development of compatible,
linked information systems across government. Therefore, it is the
purpose of this article to create, as an integral part of the
Department of Administration, the Office of Technology with the
authority to advise and make recommendations to all state spending
units on their information systems.
§5A-6-2. Definitions.
As used in this article:
(a) "Information systems" means computer-based information
equipment and related services designed for the automated
transmission, storage, manipulation and retrieval of data by
electronic or mechanical means;
(b) "Information technology" means data processing and
telecommunications hardware, software, services, supplies,
personnel, maintenance and training, and includes the programs and
routines used to employ and control the capabilities of data
processing hardware;
(c) "Information equipment" includes central processing units,
front-end processing units, miniprocessors, microprocessors and
related peripheral equipment such as data storage devices,
networking equipment, services, routers, document scanners, data
entry equipment, terminal controllers, data terminal equipment,
computer-based word processing systems other than memory
typewriters and equipment and systems for computer networks;
(d) "Related services" include feasibility studies, systems
design, software development and time-sharing services whether provided by state employees or others;
(e) "Telecommunications" means any transmission, emission or
reception of signs, signals, writings, images or sounds of
intelligence of any nature by wire, radio or other electromagnetic
or optical systems. The term includes all facilities and equipment
performing those functions that are owned, leased or used by the
executive agencies of state government;
(f) "Chief Technology Officer" means the person holding the
position created in section three of this article and vested with
authority to assist state spending units in planning and
coordinating information systems that serve the effectiveness and
efficiency of the individual state spending units, and further the
overall management goals and purposes of government; and
(g) "Experimental program to stimulate competitive research"
(EPSCoR) means the West Virginia component of the national EPSCoR
program which is designed to improve the competitive research and
development position of selected states through investments in
academic research laboratories and laboratory equipment. The
recognized West Virginia EPSCoR, which is part of the office of
technology, is the responsible organization for the coordination
and submission of proposals to all federal agencies participating
in the EPSCoR program.
§5A-6-3. Office of Technology; Chief Technology Officer;
appointment and qualifications.
There is hereby created the Office of Technology within the
Department of Administration. There shall also be a Chief
Technology Officer, who shall be appointed by and shall serve at the will and pleasure of the Governor. The Chief Technology
Officer shall have knowledge in the field of information
technology, experience in the design and management of information
systems and an understanding of the special demands upon government
with respect to budgetary constraints, the protection of privacy
interests and federal and state standards of accountability.
§5A-6-4. Powers and duties; professional staff.
(a) With respect to all state spending units the Chief
Technology Officer may:
(1) Develop an organized approach to information resource
management for this state;
(2) Provide, with the assistance of the Information Services
and Communications Division of the Department of Administration,
technical assistance to the administrators of the various state
spending units in the design and management of information systems;
(3) Evaluate, in conjunction with the information services and
communications division, the economic justification, system design
and suitability of information equipment and related services, and
review and make recommendations on the purchase, lease or
acquisition of information equipment and contracts for related
services by the state spending units;
(4) Develop a mechanism for identifying those instances where
systems of paper forms should be replaced by direct use of
information equipment and those instances where applicable state or
federal standards of accountability demand retention of some paper
processes;
(5) Develop a mechanism for identifying those instances where information systems should be linked and information shared, while
providing for appropriate limitations on access and the security of
information;
(6) Create new technologies to be used in government, convene
conferences and develop incentive packages to encourage the
utilization of technology;
(7) Engage in any other activities as directed by the
governor; and
(8) Charge a fee to the state spending units for evaluations
performed and technical assistance provided under the provisions of
this section. All fees collected by the Chief Technology Officer
shall be deposited in a special account in the state treasury to be
known as the "Chief Technology Officer Administration Fund".
Expenditures from the fund shall be made by the chief technology
officer for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
eleven-b of this code. Amounts collected which are found from time
to time to exceed the funds needed for purposes set forth in this
article may be redesignated for other purposes by appropriation of
the Legislature.
(b) With respect to executive agencies only, the Chief
Technology Officer may:
(1) Develop a unified and integrated structure for information
systems for all executive agencies;
(2) Establish, based on need and opportunity, priorities and
time lines for addressing the information technology requirements
of the various executive agencies of state government;
(3) Exercise such authority inherent to the chief executive of
the state as the Governor may, by executive order, delegate, to
overrule and supersede decisions made by the administrators of the
various executive agencies of government with respect to the design
and management of information systems and the purchase, lease or
acquisition of information equipment and contracts for related
services;
(4) Draw upon staff of other executive agencies for advice and
assistance in the formulation and implementation of administrative
and operational plans and policies; and
(5) Recommend to the Governor transfers of equipment and human
resources from any executive agency and the most effective and
efficient uses of the fiscal resources of executive agencies, to
consolidate or centralize information-processing operations.
(c) The Chief Technology Officer may employ the personnel
necessary to carry out the work of the office and may approve
reimbursement of costs incurred by employees to obtain education
and training.
§5A-6-5. Notice of request for proposals by state spending units
required to make purchases through the State Purchasing
Division.
Any state spending unit that is required to submit a request
for proposal to the State Purchasing Division prior to purchasing
goods or services shall notify the Chief Technology Officer, in writing, of any proposed purchase of goods or services related to
its information and telecommunication systems. The notice shall
contain a brief description of the goods and services to be
purchased. The state spending unit shall provide the notice to the
Chief Technology Officer at the same time it submits its request
for proposal to the State Purchasing Division.
§5A-6-6. Notice of request for proposals by state spending units
exempted from submitting purchases to the State
Purchasing Division.
(a) Any state spending unit that is not required to submit a
request for proposal to the State Purchasing Division prior to
purchasing goods or services shall notify the Chief Technology
Officer, in writing, of any proposed purchase of goods or services
related to its information or telecommunication systems. The notice
shall contain a detailed description of the goods and services to
be purchased. The state spending unit shall provide the notice to
the Chief Technology Officer a minimum of ten days prior to the
time it requests bids on the provision of the goods or services.
(b) If the Chief Technology Officer evaluates the suitability
of the information and telecommunication equipment and related
services under the provisions of subdivision (3), subsection (a),
section four of this article and determines that the goods or
services to be purchased are not suitable, he or she shall, within
ten days of receiving the notice from the state spending unit,
notify the state spending unit, in writing, of any recommendations
he or she has regarding the proposed purchase of the goods or
services. If the state spending unit receives a written notice from the Chief Technology Officer within the time period required by
this section, the state spending unit shall not put the goods or
services out for bid less than fifteen days following receipt of
the notice from the Chief Technology Officer.
§5A-6-7. Biannual report.
The Chief Technology Officer shall report biannually to the
Legislative Joint Committee on Government and Finance on the
activities of his or her office.
§5A-6-8. Exemptions.
The provisions of this article do not apply to the Legislature
or the Judiciary.
ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION.
§5A-7-4. Powers and duties of division generally; professional
staff; telephone service.
(a) The Division is responsible for providing technical
services and assistance to the various state spending units with
respect to developing and improving data processing and
telecommunications functions. The Division may provide training
and direct data processing services to the various state agencies.
The Division shall, upon request of the Chief Technology Officer,
within the office of the governor provide technical assistance in
evaluating the economic justification, system design and
suitability of equipment and systems used in state government. The
Director shall report to the
Chief Technology Officer secretary.
(b) The Director is responsible for the development of
personnel to carry out the technical work of the Division and may
approve reimbursement of costs incurred by employees to obtain education and training.
(c) In consultation with the Adjutant General, Chairman of the
Public Service Commission, the Superintendent of the State Police
and the Director of the Office of Emergency Services, the Director
is responsible for the development and maintenance of an
information systems disaster recovery system for the State of West
Virginia with sites in one or more locations isolated from
reasonably perceived threats to the primary operation of state
government. The Director shall develop specifications, funding
mechanisms and participation requirements for all executive branch
agencies to protect the State's essential data, information systems
and critical government services in times of emergency,
inoperativeness, or disaster. Each executive branch agency shall
assist the Director in planning for its specific needs and provide
to the Director any information or access to information systems or
equipment that may be required in carrying out this purpose. No
statewide or executive branch agency procurement of disaster
recovery services may be initiated, let or extended without the
expressed consent of the Director.
(c) (d) The Director may assess each state spending unit for
the cost of any evaluation of the economic justification, system
design and suitability of equipment and systems used by the state
spending unit or any other technical assistance that is provided or
performed by the Chief Technology Officer and the Division under
the provisions of section four, article
one-b six of this chapter.
(d) (e) The Director shall transfer any moneys received as a
result of the assessments that he or she makes under subsection
(c) (d) of this section to the Office of
chief Technology
officer. The
Director shall report quarterly to the Joint Committee on
Government and Finance on all assessments made pursuant to
subsection
(c) (d) of this section.
(e) (f) The Director shall maintain an accounting system for
all telephone service to the state.
(f) (g) The provisions of this article do not apply to the
Legislature or the Judiciary.
ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.
§5A-8-15. Records management and preservation of county records;
alternate storage of county records; Records
Management and Preservation Board created;
qualifications and appointment of members;
reimbursement of expenses; staffing; rule-making
authority; study of records management needs of state
agencies; grants to counties.
The Legislature finds that the use of electronic technology
and other procedures to manage and preserve public records by
counties should be uniform throughout the state where possible.
(a) The governing body and the chief elected official of any
unit of each county, hereinafter referred to as a county government
entity, whether organized and existing under a charter or under
general law, shall promote the principles of efficient records
management and preservation of local records. Such county governing
entity may, as far as practical, follow the program established for
the uniform management and preservation of county records as set
out in a rule or rules proposed for legislative approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code as proposed by the Records Management
and Preservation Board established herein.
(b) In the event any such governing body or the chief elected
official of a unit of a county government entity decides to destroy
or otherwise dispose of a county record, the governing body or such
chief elected official may, prior to destruction or disposal
thereof, offer the record to the Director of the Section of
Archives and History of the Division of Culture and History for
preservation of the record as a document of historical value.
Unless authorized by the Supreme Court of Appeals, the records of
courts of record and magistrate courts are not affected by the
provisions of this section.
(c) A preservation duplicate of a county government entity
record may be stored in any format, approved by the Board as
hereinafter established, where the image of the original record is
preserved in a form, including CD-ROM and optical image storage
media, in which the image thereof is incapable of erasure or
alteration and from which a reproduction of the stored record may
be retrieved which truly and accurately depicts the image of the
original county government record.
Except for those formats, processes and systems used for the
storage of records on the effective date of this section, no
alternate format for the storage of county government entity
records described in this section is authorized for the storage of
county government entity records unless the particular format has
been approved pursuant to a legislative rule promulgated by the Board as herein created in accordance with the provisions of
chapter twenty-nine-a of this code. The Board as herein established
may prohibit the use of any format, process or system used for the
storage of records upon its determination that the same is not
reasonably adequate to preserve the records from destruction,
alteration or decay.
Upon creation of a preservation duplicate which stores an
original county government entity record in an approved format in
which the image thereof is incapable of erasure or alteration and
from which a reproduction of the stored record may be retrieved
which truly and accurately depicts the image of the original
record, the county government entity may destroy or otherwise
dispose of the original in accordance with the provisions of
section seven-c, article one, chapter fifty-seven of this code.
(d) There is hereby created a Records Management and
Preservation Board for county government entities, to be composed
of nine members.
(1) Three members shall serve ex officio. One member shall be
the Commissioner of the Division of Culture and History who shall
be the chairman of the Board. One member shall be the Administrator
of the Supreme Court of Appeals. One member shall be
the
administrator of the
governor's office of Chief Technology
Officer
or his or her designee.
(2) The Governor shall appoint six members of the Board with
the advice and consent of the Senate. Not more than five
appointments to the Board may be from the same political party and
not more than three members may be appointed from the same congressional district. Of the six members appointed by the
governor: (i) Three appointments shall be county elected officials,
one of whom shall be a clerk of the county commission, one of whom
shall be a circuit court clerk and one of whom shall be a county
commissioner, to be selected from a list of nine names, including
the names of three clerks of county commissions and three circuit
court clerks submitted to the Governor by the West Virginia
association of counties and the names of three county commissioners
submitted to the governor jointly by the West Virginia association
of counties and the West Virginia county commissioners association;
(ii) one appointment shall be a county prosecuting attorney to be
selected from a list of three names submitted by the West Virginia
prosecuting attorneys institute; (iii) one appointment shall be an
attorney licensed in West Virginia and in good standing as a member
of the state bar with experience in real estate and mineral title
examination, to be selected from a list of three names submitted by
the state bar; and (iv) one appointment shall be a representative
of a local historical or genealogical society.
(e) The members of the Board shall serve without compensation
but shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of their duties as members of
the Board. In the event the expenses are paid, or are to be paid,
by a third party, the member shall not be reimbursed by the state.
(f) The staff of the Board shall consist of the Director of
the Archives and History Section of the Division of Culture and
History and such staff as he or she may designate to assist him or
her.
(g) On or before the first day of July, two thousand one, the
Board shall propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code to establish a system of records management and preservation
for county governments:
Provided, That, for the retention and
disposition of records of courts of record and magistrate courts,
the implementation of the rule is subject to action of the West
Virginia Supreme Court of Appeals. The proposed rule or rules shall
include provisions for establishing a program of grants to county
governments for making records management and preservation uniform
throughout the state. The Board is not authorized to propose or
promulgate emergency rules under the provisions of this section.
(h) On or before the first day of April, two thousand two, the
Board, in cooperation with the administrator and state executive
agencies under the general authority of the Governor, shall conduct
a study of the records management and preservation needs of state
executive agencies. Should the Board determine a need for a uniform
records management and preservation system for such agencies, it
shall recommend that the administrator propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code to provide for the
implementation of a uniform records management and preservation
system for state executive agencies.
(i) In addition to the fees charged by the clerk of the county
commission under the provisions of section ten, article one,
chapter fifty-nine of this code, the clerk shall charge and collect
an additional one-dollar fee for every document containing less than ten pages filed for recording and an additional one-dollar fee
for each additional ten pages of such document filed for recording.
At the end of each month, the clerk of the county commission shall
deposit into the special public records and preservation account as
herein established in the State Treasury all fees collected:
Provided, That the clerk may retain not more than ten percent of
such fees for costs associated with the collection of the fees.
Clerks shall be responsible for accounting for the collection and
deposit in the state treasury of all fees collected by such clerk
under the provisions of this section.
There is hereby created in the State Treasury a special
account entitled the "public records and preservation revenue
account". The account shall consist of all fees collected under the
provisions of this section, legislative appropriations, interest
earned from fees, investments, gifts, grants or contributions
received by the Board. Expenditures from the account shall be for
the purposes set forth in this article and are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a eleven-b of this code:
Provided, That for the fiscal year
ending the thirtieth day of June, two thousand one, expenditures
are authorized from collections rather than pursuant to an
appropriation by the Legislature.
Subject to the above provision, the Board may expend the funds
in the account to implement the provisions of this article. In expending funds from the account, the Board shall allocate not more
than fifty percent of such funds for grants to counties for records
management, access and preservation purposes. The Board shall
provide for applications, set guidelines and establish procedures
for distributing grants to counties including a process for
appealing an adverse decision on a grant application. Expenditures
from the account shall be for the purposes set forth in this
section, including the cost of additional staff of the Division of
Archives and History.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION
SHARED.
§5B-3-4. Commission review of procedural rules, interpretive rules
and existing legislative rules.
(a) The Joint Commission on Economic Development may review
any procedural rule, interpretive rule or existing legislative rule
and make recommendations concerning the rules to the Legislature.
(b) The Development Office and the Tourism Commission
established pursuant to article two of this chapter, the Economic
Development Authority established pursuant to article fifteen,
chapter thirty-one of this code, the Bureau of Employment Programs
established pursuant to article four, chapter twenty-one-a of this
code, the Workers' Compensation Commission established pursuant to
article one, chapter twenty-three of this code, the Workforce
Investment Commission established pursuant to article two-c of this
chapter, West Virginia Jobs Investment Trust, Regional Planning and
Development Councils, West Virginia Rural Development Council,
governor's Office of Technology and West Virginia Clearinghouse for
Workforce Education shall each file a copy of its legislative rules
with the commission as provided for in this section. Each agency
that proposes legislative rules in accordance to the provisions of
article three, three-a or three-b, chapter twenty-nine-a of this
code relating to economic development or workforce development
shall file the rules with the Joint Commission at the time the
rules are filed with the Secretary of State prior to the public
comment period or public hearing required in said chapter.
§5B-3-5. Joint commission on economic development studies.
(a) The Joint Commission on Economic Development shall study
the following:
(1) The feasibility of establishing common regional
configurations for such purposes as local workforce investment
areas, regional educational service agencies and for all other
purposes the commission considers feasible. The study should
review the existing levels of cooperation between state and local
economic developers, complete an analysis of possible regional
configurations and outline examples of other successful regional
systems or networks found throughout the world. If the study
determines that the common regional configurations are feasible,
the commission shall recommend legislation establishing common
regional designations for all purposes the commission considers
feasible. In making the designation of regional areas, the study
shall take into consideration, but not be limited to, the
following:
(A) Geographic areas served by local educational agencies and intermediate educational agencies;
(B) Geographic areas served by post-secondary educational
institutions and area vocational education schools;
(C) The extent to which the local areas are consistent with
labor market areas;
(D) The distance that individuals will need to travel to
receive services provided in the local areas; and
(E) The resources of the local areas that are available to
effectively administer the activities or programs;
(2) The effectiveness and fiscal impact of incentives for
attracting and growing businesses, especially technology-intensive
companies; and
(3) A comprehensive review of West Virginia's existing
economic and community development resources and the recommendation
of an organizational structure, including, but not limited to, the
reorganization of the Bureau of Commerce and the Development Office
that would allow the state to successfully compete in the new
global economy.
(b) In order to effectuate in the most cost-effective and
efficient manner the studies required in this article, it is
necessary for the Joint Commission to assemble and compile a
tremendous amount of information. The Development Office will
assist the Joint Commission in the collection and analysis of this
information. The Tourism Commission established pursuant to article
two of this chapter, the Economic Development Authority established
pursuant to article fifteen, chapter thirty-one of this code, the
Bureau of Employment Programs established pursuant to article four, chapter twenty-one-a of this code, the Workers' Compensation
Commission established pursuant to article one, chapter
twenty-three of this code, the Workforce Investment Commission
established pursuant to article two-c of this chapter, West
Virginia Jobs Investment Trust, regional planning and development
councils, West Virginia Rural Development Council,
governor's
Office of Technology and West Virginia Clearinghouse for Workforce
Education all shall provide a copy of the agency's annual report as
submitted to the Governor in accordance with the requirements set
forth in section twenty, article one, chapter five of this code to
the West Virginia Development Office. The Development Office shall
review, analyze and summarize the data contained in the reports,
including its own annual report, and annually submit its findings
to the Joint Commission on or before the thirty-first day of
December.
(c) The Legislative Auditor shall provide to the Joint
Commission a copy of any and all reports on agencies listed in
subsection (b) of this section, which are required under article
ten, chapter four of this code.
(d) The Joint Commission shall complete the studies set forth
in this section and any other studies the Joint Commission
determines to undertake prior to the first day of December of each
year and may make recommendations, including recommended
legislation for introduction during the regular session of the
Legislature.
CHAPTER 5F. ORGANIZATION OF THE EXECUTIVE BRANCH OF STATE
GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the
contrary, the secretary of each department shall have plenary power
and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
such employees as may be necessary to carry out the functions of
the secretary, which employees shall serve at the will and pleasure
of the secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically, and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the
department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members, and name a person
to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board
members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the
Governor, and transfer within the department funds appropriated to
the various agencies of the department which are not expended due
to cost savings resulting from the implementation of the provisions
of this chapter:
Provided, That no more than twenty-five percent
of the funds appropriated to any one agency or board may be transferred to other agencies or boards within the department:
Provided, however, That no funds may be transferred from a special
revenue account, dedicated account, capital expenditure account or
any other account or funds specifically exempted by the Legislature
from transfer, except that the use of appropriations from the State
Road Fund transferred to the Office of the Secretary of the
Department of Transportation is not a use other than the purpose
for which such funds were dedicated and is permitted:
Provided
further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the secretary may
transfer the funds formerly appropriated to such agency, board or
function in order to implement such consolidation. The authority
to transfer funds under this section shall expire on the thirtieth
day of June, two thousand
six five;
(7) Enter into contracts or agreements requiring the
expenditure of public funds, and authorize the expenditure or
obligating of public funds as authorized by law:
Provided, That
the powers granted to the secretary to enter into contracts or
agreements and to make expenditures or obligations of public funds
under this provision shall not exceed or be interpreted as
authority to exceed the powers heretofore granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
under this chapter;
(8) Acquire by lease or purchase property of whatever kind or
character and convey or dispose of any property of whatever kind or character as authorized by law:
Provided, That the powers granted
to the secretary to lease, purchase, convey or dispose of such
property shall not exceed or be interpreted as authority to exceed
the powers heretofore granted by the Legislature to the various
commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one,
chapter twenty-nine-a of this code, to implement and make effective
the powers, authority and duties granted and imposed by the
provisions of this chapter, such promulgation to be in accordance
with the provisions of chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter twenty-nine-a
of this code, by any administrator, agency or board within the
department, without which written consent no proposal of a rule
shall have any force or effect;
(13) Delegate to administrators such duties of the secretary
as the secretary may deem appropriate from time to time to
facilitate execution of the powers, authority and duties delegated
to the secretary; and
(14) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall
engage in a comprehensive review of the practices, policies and operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restrictions in the use of
the state's vehicle or other transportation fleet;
(2) The elimination, reduction and restrictions in the
preparation of state government publications, including annual
reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to
facilitate cost-effective purchasing procedures, including
consideration of means by which domestic businesses may be assisted
to compete for state government purchases; and
(6) The computerization of the functions of the state agencies
and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries
herein shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any such program and the powers granted to the secretary shall be so
construed.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections five and
six, section ten, article six, chapter twenty-nine of this code
shall be limited to the organizational unit within the agency or
board and within the occupational group established by the
classification and compensation plan for the classified service of
the agency or board in which the employee was employed prior to the
agency or board's transfer or incorporation into the department:
Provided, That the employee shall possess the qualifications
established for the job class. The duration of recall rights
provided in this subsection shall be limited to two years or the
length of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed to
abridge the rights of employees within the classified service of
the state as provided in sections ten and ten-a, article six,
chapter twenty-nine of this code, or the right of classified
employees of the Board of Regents to the procedures and protections
set forth in article twenty-six-b, chapter eighteen of this code.
(e) Notwithstanding any provision of this code to the contrary
the secretary of each department with authority over programs which
are payors for prescription drugs, including but not limited to,
the Public Employees Insurance Agency, the Children's Health
Insurance Program, the Division of Corrections, the Division of
Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as
nursing homes, veteran's homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or
other programs which are payors for prescription drugs, shall
cooperate with the Office of the Pharmaceutical Advocate
established pursuant to section four, article sixteen-d, chapter
five of this code for the purpose of purchasing prescription drugs
for any program over which they have authority.
CHAPTER 11. TAXATION.
ARTICLE 10A. WEST VIRGINIA OFFICE OF TAX APPEALS.
§11-10A-6. Chief Administrative Law Judge; appointment, term and
vacancy; qualifications; compensation; conflicts of
interest prohibited; removal.
(a) The Governor, with the advice and consent of the Senate,
shall appoint the Chief Administrative Law Judge from a list of
three qualified nominees submitted to the Governor by the Board of
Governors of the West Virginia State Bar for a
sixfour-year term.
An appointment to fill a vacancy in the position shall be for the
unexpired term.
(b) Prior to appointment, the Chief Administrative Law Judge
shall be a citizen of the United States and a resident of this
state who is admitted to the practice of law in this state and who
has five years of full-time or equivalent part-time experience as
an attorney with federal or state tax law expertise or as a judge
of a court of record.
(c) The salary of the Chief Administrative Law Judge shall be
set by the Secretary of the Department of
Tax and Revenue created in section two, article one, chapter five-f of this code. The
salary shall be within the salary range for comparable chief
administrative law judges as determined by the State Personnel
Board created by section six, article six, chapter twenty-nine of
this code.
(d) The Chief Administrative Law Judge, during his or her term
shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be
associated with any group or entity which is itself engaged in the
active practice of law:
Provided, That nothing in this paragraph
may be construed to prohibit the Chief Administrative Law Judge
from being a member of a national, state or local bar association
or committee, or of any other similar type group or organization,
or to prohibit the Chief Administrative Law Judge from engaging in
the practice of law by representing himself, herself or his or her
immediate family in their personal affairs in matters not subject
to this article.
(3) Not engage directly or indirectly in any activity,
occupation or business interfering or inconsistent with his or her
duties as Chief Administrative Law Judge;
(4) Not hold any other appointed public office or any elected
public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve
on or under any committee of any political party.
(e) The Governor may remove the Chief Administrative Law Judge
only for incompetence, neglect of duty, official misconduct or violation of subsection (d) of this section, and removal shall be
in the same manner as that specified for removal of elected state
officials in section six, article six, chapter six of this code.
§11-10A-7. Powers and duties of Chief Administrative Law Judge; all
employees, except Chief Administrative Law Judge
members of classified service; qualifications of
administrative law judges; closure of Tax Division
Office of Hearings and Appeals and transfer of
employees to Office of Tax Appeals.
(a) The Chief Administrative Law Judge is the chief executive
officer of the Office of Tax Appeals and he or she may employ
up to
two administrative law judges, no more than one person to serve as
executive director,
no more than one staff attorney and other
clerical personnel as necessary for the proper administration of
this article. The Chief Administrative Law Judge may delegate
administrative duties to other employees, but the Chief
Administrative Law Judge shall be responsible for all official
delegated acts.
(1) Upon the request of the Chief Administrative Law Judge,
the Governor may appoint up to two administrative law judges as
necessary for the proper administration of this article.
(1)(2) All employees of the Office of Tax Appeals, except the
Chief Administrative Law Judge, shall be in the classified service
and shall be governed by the provisions of the statutes, rules and
policies of the classified service in accordance with the
provisions of article six, chapter twenty-nine of this code.
(2)(3) Prior to employment by the Office of Tax Appeals, all administrative law judges shall be admitted to the practice of law
in this state and have at least two years of full-time or
equivalent part-time experience as an attorney with federal or
state tax law expertise.
(3)(4) The Chief Administrative Law Judge and all
administrative law judges shall be members of the public employees
retirement system and do not qualify as participants in the
judicial retirement system during their tenure with the office of
tax appeals.
(4)(5) Notwithstanding any provisions of this code to the
contrary, the Chief Administrative Law Judge shall employ any
person not a temporary or probationary employee employed full-time
and in good standing by the Tax Division in its hearings office
applying for a position with the Office of Tax Appeals. A former
Tax Division employee employed by the Office of Tax Appeals under
the provisions of this subdivision shall retain his or her
classified service classification, salary and benefits:
Provided,
That if an employee is currently classified as a chief
administrative law judge, he or she may not retain that
classification and must be reclassified as determined by the
Secretary of the Department of
tax and Revenue.
(b) The Chief Administrative Law Judge shall:
(1) Direct and supervise the work of the legal staff;
(2) Make hearing assignments;
(3) Maintain the records of the Office of Tax Appeals;
(4) Review and approve decisions of administrative law judges
as to legal accuracy, clarity and other requirements;
(5) Publish decisions in accordance with the provisions of
section sixteen of this article;
(6) Submit to the Legislature, on or before the fifteenth day
of February, an annual report summarizing the Office of Tax
Appeals' activities since the end of the last report period,
including a statement of the number and type of matters handled by
the Office of Tax Appeals during the preceding fiscal year and the
number of matters pending at the end of the year; and
(7) Perform the other duties necessary and proper to carry out
the purposes of this article.