COMMITTEE SUBSTITUTE
FOR
H.B. 2073
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley [By Request
of the Executive])
(Originating in the Committee on Education)
[February 14, 1995]
A BILL to amend article two, chapter eighteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section five-d;
to amend article five of said chapter by adding thereto
three new sections, designated sections fifteen-f, forty-two
and forty-three; to amend and reenact section two, article
five-a of said chapter; to amend and reenact sections one
and one-a, article five, chapter eighteen-a of said code;
and to amend and reenact section eleven-a, article seven,
chapter sixty-one of said code, all relating to the duty of
the state board to report guidelines for productive and safe
schools to the governor and the Legislature; the duty of the
parent to affirm, upon registration, that their child is not currently under suspension or expulsion; the creation of a
county-wide council on productive and safe schools; the duty
of the county board of education to report the county-wide
plans to the state board of education; the involvement of
the local school improvement councils in the productive and
safe school plans; the authority of teachers and other
school personnel to exclude students from the classroom or
school bus; the implementation of the responsible students
program and the peer mediation program by the county board
of education; the suspension and expulsion, discretionary
and mandatory, of pupils from the school or school bus; the
due process requirements for suspension and expulsion; the
authority of the county board of education to lessen
mandatory periods of expulsion; the temporary removal of a
disabled child from the school; the re-enrollment of
students who have been expelled from school, whether such
expulsion was in state or out of state; the possession of
firearms or deadly weapons on premises of educational
facilities.
Be it enacted by the Legislature of West Virginia:
That article two, chapter eighteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section five-
d; that article five of said chapter be amended by adding thereto
three new sections, designated sections fifteen-f, forty-two and
forty-three; that section two, article five-a of said chapter be
amended and reenacted; that sections one and one-a, article five,
chapter eighteen-a of said code be amended and reenacted; and
that section eleven-a, article seven, chapter sixty-one of said
code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-5d. Duty of board to report guidelines for productive and
safe schools.
On or before the first day of December, one thousand nine
hundred ninety-five, the board shall assess and report to the
Governor and to the legislative oversight commission on education
accountability, the guidelines adopted by the county boards of
education, as described in section forty-three, article five,
chapter eighteen of this code. The board shall also add
recommendations for the use of the peer mediation program in
cases involving school violence.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-15f Affirmation regarding the suspension of expulsion of
a pupil from school
(a) Prior to the admission of a pupil to any public school
in West Virginia, the county superintendent shall require the
pupil's parent(s) or other legal guardian(s) to provide, upon
registration, a sworn statement or affirmation indicating whether
the student is, at the time, under suspension or expulsion from
attendance at a private or public school in West Virginia or
another state. Any person willfully making a materially false
statement or affirmation shall be guilty of a misdemeanor, and
upon conviction ther penalty shall be the same as provided for
"false swearing" pursuant to section three, article five, chapter
sixty-one of this code.
(b) Notwithstanding any over provision of this code to the
contrary, any pupil who has been suspended or expelled from
school pursuant to section one-a, article five, of chapter
eighteen-a of this code, or who has been suspended or expelled
from a public or private school in another state, may not be
admitted to any public school within the state of West Virginia
until the period of suspension or expulsion has expired.
§18-5-42. County-wide council on productive and safe schools.
(a) On or before the thirtieth day of April, one thousand
nine hundred ninety-five, there shall be developed a county-wide
council on productive and safe schools, which shall be comprised
of the following members:
(1) The county superintendent, who shall serve as the chair
of the county-wide council on productive and safe schools;
(2) One representative from each local school improvement
council, to be elected by a majority vote of each local school
improvement council;
(3) The prosecuting attorney or his or her designee;
(4) A representative of the department of health and human
resources created pursuant to the provisions of section two,
article one, chapter five-f of this code, to be appointed in a
manner determined by the secretary of the department;
(5) A representative of the law enforcement agencies
situated in the county in which the school is situated to be
recommended by the county superintendent; and
(6) A representative of the county board of education for the county in which the school is situated in the county in which
the school is situated to be appointed by the president of the
county board of education;
(7) The county board of education supervisor of
transportation.
(8) A representative of the regional comprehensive
behavioral health center as designated by the office of
behavioral health services in which the county school system is
situated, to be appointed by the executive director of the
center.
(b) The county superintendent shall call an organizational
meeting of the council as soon as practicable after the effective
date of this section.
(c) On or before the first day of October, one thousand nine
hundred ninety-five, the said council shall compile the various
plans of, and shall deliver, assess the proposals of, and report
to the county board of education, the local school improvement
councils' guidelines for the instruction and rehabilitation of students who have been excluded from the classroom, suspended
from the school, or expelled from the school, including, but not
limited to, the description and recommendation of in-school
suspension programs and a description of possible alternative
settings, schedules for instruction, and alternative education
programs.
§18-5-43. Duty of the county board of education to report the
county-wide productive and safe school plans to the West
Virginia board of education.
On or before the first day of November, one thousand nine
hundred ninety-five, each county board of education shall
deliver, assess the proposal of, and report to the West Virginia
Board of Education, the productive and safe school plan reported
by the county-wide council on productive and safe schools, as
described in section forty-two of this article.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-2. Local school improvement councils; election.
(a) A local school improvement council shall be established
at every school consisting of the following:
(1) The principal, who shall serve as an ex officio member
of the council and be entitled to vote;
(2) Three teachers elected by the faculty senate of the
school;
(3) Two school service personnel elected by the school
service personnel employed at the school;
(4) Three parents or legal guardians of students enrolled at
the school elected by the parent members of the school's parent
teacher organization:
Provided, That if there is no parent
teacher organization, the parent or legal guardian members shall
be elected by the parents and legal guardians of students
enrolled at the school in such manner as may be determined by the
principal;
(5) Two at-large members appointed by the principal, one of
whom resides in the school's attendance area and one of whom
represents business or industry, neither of whom is eligible for
membership under any of the other elected classes of members;
(6) In the case of vocational-technical schools, the vocational director:
Provided, That if there is no vocational
director, then the principal may appoint no more than two
additional representatives, one of whom represents business and
one of whom represents industry;
(7) In the case of a school with students in grade seven or
higher, the student body president or other student in grade
seven or higher elected by the student body in those grades;
(b) The principal shall arrange for such elections to be
held prior to the fifteenth day of September of each school year
to elect a council and shall give notice of the elections at
least one week prior to the elections being held. To the extent
practicable, all elections to select council members shall be
held within the same week. Parents, teachers, and service
personnel elected to the council shall serve a two-year term, and
elections shall be arranged in such a manner that no more than
two teachers, no more than two parents or legal guardians, and no
more than one service person are elected in a given year. All other non-ex-officio members shall serve one-year terms. Council
members may only be replaced upon death, resignation, failure to
appear at three consecutive meetings of the council for which
notice was given, or a change in personal circumstances so that
the person is no longer representative of the class of members
from which appointed. In the case of replacement, an election
shall be held to elect another qualified person to serve the
unexpired term of the person being replaced.
(c) As soon as practicable after the election of council
members, and no later than the first day of October of each
school year, the principal shall convene an organizational
meeting of the school improvement council. The principal shall
notify each member in writing at least two employment days in
advance of the organizational meeting. At this meeting, the
principal shall provide each member with a copy of the current
applicable section of this code and any state board rule or
regulation promulgated pursuant to the operation of these
councils. The council shall elect from its membership a chair and two members to assist the chair in setting the agenda for
each council meeting. The chair shall serve a term of one year
and no person may serve as chair for more than two consecutive
terms. If the chair's position becomes vacant for any reason,
the principal shall call a meeting of the council to elect
another qualified person to serve the unexpired term.
(d) Once elected, the chair is responsible for notifying
each member of the school improvement council in writing two
employment days in advance of any council meeting.
School improvement councils shall meet at least once every
nine weeks or equivalent grading period at the call of the chair
or by three fourths of its members.
(e) School improvement councils shall be considered for the
receipt of school of excellence awards under section three of
this article and competitive grant awards under section twenty-
nine, article two of this chapter, and may receive and expend
such grants for the purposes provided in such section.
In any and all matters which may fall within the scope of both the school improvement councils and the school curriculum
teams authorized in section five of this article, the school
curriculum teams shall be deemed to have jurisdiction.
In order to promote innovations and improvements in the
environment for teaching and learning at the school, a school
improvement council shall receive cooperation from the school in
implementing policies and programs it may adopt to:
(1) Encourage the involvement of parents in their child's
educational process and in the school;
(2) Encourage businesses to provide time for their employees
who are parents to meet with teachers concerning their child's
education;
(3) Encourage advice and suggestions from the business
community;
(4) Encourage school volunteer programs and mentorship
programs; and
(5) Foster utilization of the school facilities and grounds
for public community activities.
(f) On or before the eighth day of June, one thousand nine
hundred ninety-five, the local school improvement council at
every school shall develop and deliver a report to the county-
wide council on productive and safe schools, as defined in
section forty-two, article five, chapter eighteen of this code,
guidelines for the instruction and rehabilitation of pupils who
have been excluded from the classroom, suspended from the school,
or expelled from the school, including, but not limited to, the
description and recommendation of in-school suspension programs
and a description of possible alternative settings, schedules for
instruction, and alternative education programs. The guidelines
may also include the following:
(1) An expansion of the state board of education Policy
4373, Student Code of Conduct, for the school in which the
council was established, that ensures the school's continuing or
increasing productivity by and through the fostering and
maintenance of a classroom environment that is free from
disorderly conduct and that further ensures the school's continuing or increasing safety by and through the maintenance of
classrooms, grounds and facilities that are free from threats or
acts of violence and that are free of firearms and other deadly
weapons: Provided, That the proposed policy shall be developed
in accordance with the provisions of state law and the policies
of the West Virginia board of education;
(2) An effective communication and coordination between the
school and local emergency services agencies;
(3) Implementation of, and review of the operation of, the
responsible students program devised by the West Virginia board
of education and required to be adopted by the school in which
the council is established pursuant to the provisions of
subsection (e), section (1), article five, chapter eighteen-a of
this code; and
(4) Implementation of, and review of the operation of, the
peer mediation program or programs devised by the West Virginia
board of education and required to be adopted by the school in
which the council is established, pursuant to the provisions of subsection (e), section (1), article five, chapter eighteen-a of
this code.
(g) Councils may adopt their own guidelines established
under this section. In addition, the councils may adopt all or
any part of the guidelines proposed by other local school
improvement councils, as developed under this section, which are
not inconsistent with the laws of this state, the policies of the
West Virginia board of education or the policies of the county
board of education.
(h) Councils may seek assistance from the state board of
education for the development of the productive and safe school
plans as needed.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE
5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1. Authority of teachers and other school personnel;
exclusion of pupils having infectious diseases;
suspension or expulsion of disorderly pupils;
corporal punishment abolished.
(a) The teacher shall stand in the place of the parent or guardian in exercising authority over the school, and shall have
control of all pupils enrolled in the school from the time they
reach the school until they have
returned to their respective
homes left the school grounds, except that where transportation
of pupils is provided, the driver in charge of the school bus or
other mode of transportation shall exercise such authority and
control over the children while they are in transit to and from
the school.
(b) Subject to the rules of the state board of education,
the teacher shall exclude from the school any pupil or pupils
known to have or suspected of having any infectious disease, or
any pupil or pupils who have been exposed to such disease, and
shall immediately notify the proper health officer, or medical
inspector, of such exclusion. Any pupil so excluded shall not
be readmitted to the school until such pupil has complied with
all the requirements of the rules governing such cases, or has
presented a certificate of health signed by the medical inspector
or other proper health officer.
(c) The teacher shall have authority, to
suspend immediately
exclude from his or her classroom or school bus as the case may
be any pupil
who is guilty of disorderly
, refractory, indecent or
immoral conduct
, and the district board of education may expel or
exclude any such pupil if, on investigation, the conduct of such
pupil is found to be detrimental to the progress and the general
conduct of the school ; or who in any manner interferes with an
orderly educational process; or who in any manner threatens,
abuses, or otherwise intimidates or attempts to intimidate a
school employee or a pupil; or who willfully disobeys a school
employee; or who uses abusive or foul language directed at a
school employee. Any pupil who is so excluded shall be placed
under the control of the principal of the school or a designee
and the excluded pupil shall be admitted to the classroom, or
school bus as the case may be, only upon the written
certification of the principal of the school or a designee of the
specific type of disciplinary action, if any, which was taken.
A copy of said certification shall be provided to the teacher who excluded the pupil, upon or before the pupil's return to the
classroom or school bus as the case may be. If the principal
finds that disciplinary action is warranted, telephonic notice,
if possible, proceeded by written notice of such action, shall be
provided to the parent(s) or legal guardian(s). If in the course
of a school year, a teacher has excluded the same pupil from his
or her classroom for the third time, then the pupil may be
readmitted to the teacher's classroom only after the teacher,
principal, and, to the extent possible, the parent(s),
guardian(s), or other custodian(s) of the pupil have held a
conference to discuss the pupil's disruptive behavior patterns,
and the teacher and the principal agree on a course of discipline
for the pupil and inform the parent(s), guardian(s) or other
custodian(s) of the course of action. Thereafter, if the pupil's
disruptive behavior persists, upon the teacher's request, the
principal may, to the extent feasible, transfer the pupil to
another setting.
(d) Corporal punishment of any pupil by a school employee is prohibited.
(e) The West Virginia board of education and county boards
of education shall adopt policies consistent with the provisions
of this section encouraging the use of alternatives to corporal
punishment, providing for the training of school personnel in
alternatives to corporal punishment and for the involvement of
parents and guardians in the maintenance of school discipline.
The county boards of education shall provide for the immediate
incorporation and implementation in the schools within the
boards' respective counties of the responsible student program,
which has been devised by the West Virginia board of education,
except that such program may be modified to meet the particular
needs or unique circumstances of a county's schools. The county
boards of education shall further provide for the immediate
incorporation and implementation in the schools within the
boards' respective counties of the peer mediation program or
programs for students, which has been devised by the West
Virginia board of education, except that such program may be modified to meet the particular needs or unique circumstances of
a county's schools.
(f) For the purpose of this section: (1) "Pupil" shall
include any child, youth or adult who is enrolled in any
instructional program or activity conducted under board
authorization and within the facilities of or in connection with
any program under public school direction:
Provided, That in the
case of adults the pupil-teacher relationship shall terminate
when the pupil leaves the school or other place of instruction or
activity; (2) "teacher" shall mean all professional educators as
defined in section one, article one of this chapter and shall
include the driver of a school bus or other mode of
transportation.
(g) Teachers shall exercise such other authority and
perform such other duties as may be prescribed for them by law or
by the rules of the state board of education not inconsistent
with the provisions of this chapter and chapter eighteen of this
code.
§18A-5-1a. Possessing deadly weapons on premises of educational
facilities; assaults by pupils upon teachers or other school
personnel; temporary suspension, hearing; procedure, notice
and formal hearing; extended suspension; expulsion;
exception.
(a)
Any pupil who threatens to cause, attempts to cause, or
causes a bodily injury to a school employee may be suspended or
expelled from school in accordance with the provisions of this
section. A principal shall suspend a pupil from, and the county
board of education for the county in which the principal's school
is situated shall expel a pupil from, the school or from
transportation to or from the school on any school bus if the
pupil, in the determination of the principal, in the case of
suspension, or in the determination of the county board of
education, in the case of expulsion, has violated the provisions
of section fifteen, article two, chapter sixty-one of this code
or has violated the provisions of section eleven-a, article
seven, chapter sixty-one of this code or has unlawfully possessed
a controlled substance governed by the Uniform Controlled Substance Act as adopted in this state or has otherwise committed
acts or engaged in conduct that would constitute a felony under
the laws of this state if committed by, or engaged in, by an
adult. A principal may suspend a pupil from, and the county
board of education for the county in which the principal's school
is situated may expel a pupil from, the school or transportation
to or from the school on any school bus if the pupil, in the
determination of the principal, in the case of suspension, or in
the determination of the county board of education, in the case
of expulsion, has threatened to injure, or has in any manner
injured, a pupil, teacher, administrator or other school
personnel; or is guilty or willful disobedience; or possesses
tobacco or alcohol in the school building, or on school grounds,
or on a school bus, or at any school-sponsored function; or uses
foul or profane language directed at a school employee; or
intentionally defaces any school property or school grounds; or
participates in any fight while under the authority and
supervision of school personnel; or has habitually violated school rules or policies. Principals shall exercise such other
authority and perform such other duties with respect to
discipline of pupils as may be prescribed by law or the rules of
the state board of education to the extent the provisions of such
law or rules are not inconsistent with the provisions of this
chapter and chapter eighteen of this code.
(b) The actions of any pupil which may be grounds for his
or
her suspension or expulsion under the provisions of this section
shall be reported immediately to the principal of the school in
which such pupil is enrolled. If the principal determines that
the alleged actions of the pupil would be grounds for suspension,
he
or she shall conduct an informal hearing for the pupil
as soon
as practicable immediately after the alleged actions have
occurred. The hearing shall be held before the pupil is
suspended unless the principal believes that the continued
presence of the pupil in the school poses a continuing danger to
persons or property or an ongoing threat of disrupting the
academic process, in which case the pupil
may shall be suspended immediately and a hearing held as soon as practicable after the
suspension.
The pupil and his parent
(s) or parents or custodial
guardian
(s), as the case may be, shall be given
telephonic
notice, if possible, confirmed with written notice by certified
mail, return receipt requested, of this informal hearing, which
notice shall briefly state the grounds for suspension.
At the commencement of the informal hearing, the principal
shall inquire of the pupil as to whether he admits or denies the
charges. If the pupil does not admit the charges, he shall be
given an explanation of the evidence possessed by the principal
and an opportunity to present his version of the occurrence. At
the conclusion of the hearing or upon the failure of the noticed
persons to appear, the principal may suspend the pupil for a
maximum of ten school days, including the time prior to such
hearing, if any, for which the pupil has been excluded from
school. If the principal believes,
or the provisions of this
section dictate, that a longer suspension or expulsion of the pupil is warranted in addition to a ten-day suspension,
he shall
so advise the parents and pupil, if present, and the principal
shall recommend such action to the superintendent of schools of
the county in which the school where the pupil is enrolled is
located.
(c) Any suspension shall be reported by the principal the
same day it has been decided upon, in writing, to the county
superintendent of schools of the county in which the school where
the pupil is enrolled is located
and to the faculty senate of the
school at the next meeting after the said suspension.
(d) If the principal recommends and the superintendent
agrees that the suspension
of the pupil should,
or under the
provisions of this section must, be extended for beyond ten
school days or that the pupil should,
or under the provisions of
this section must, be expelled from school, the superintendent
shall immediately notify the county board of education of this
recommendation. Upon receipt of such recommendation, the county
board of education shall cause a written notice, which states the charges and the recommended disposition, to be served upon the
pupil and his parent
(s) or parents or custodial guardian
(s), as
the case may be.
, advising such persons that unless a timely
request is made for hearing, the recommended disposition shall
become final Such notice shall set forth a date and time at
which such hearing,
if requested, shall be held, which date shall
be within the ten-day period of suspension imposed by the
principal.
The notice shall further advise the persons to be
noticed thereby that a request for hearing will not be granted
unless received by the board more than twenty-four hours before
the time proposed for hearing in the notice.
Upon timely receipt of a hearing request, The board of
education shall hold the scheduled hearing to determine if the
pupil should be reinstated or should,
or under the provisions of
this section must, have his suspension extended or should,
or
under the provisions of this section must, be expelled from
school. At this hearing, the pupil may be represented by
counsel, may call his own witnesses to verify his version of the incident and may confront and cross-examine witnesses supporting
the charge against him.
The hearing shall be recorded by
mechanical means. The hearing may be postponed for good cause
shown by the pupil but he shall remain under suspension until
after the hearing. The state board of education may adopt other
supplementary rules of procedure to be followed in these
hearings. At the conclusion of the hearing the county board of
education either shall order the pupil reinstated immediately or
at the end of his initial suspension or shall suspend the pupil
for a further designated number of days or shall expel the pupil
from the public schools of such county.
for a period of time not
to exceed one school year
(e) Pupils may be expelled pursuant to the provisions of
this section for a period not to exceed one school year, except
that, if a pupil is determined to have violated the provisions of
section eleven-a, article seven, chapter sixty-one of this code,
or if a pupil is determined to have violated the provisions of
section fifteen, article two, chapter sixty-one of this code, the pupil shall be expelled for a period of not less than twelve
consecutive months: Provided, That the county superintendent may
lessen the mandatory period of twelve consecutive months for the
expulsion of the pupil if the circumstances of the pupil's case
demonstrably warrant. Upon the lessening of the mandatory period
of expulsion the county superintendent shall direct the county
board of education to prepare a written statement setting forth
the circumstances of the pupil's case which were demonstrated and
which warranted the lessening of the mandatory period of
expulsion and the statement shall be submitted to the principal,
the faculty senate, and the local school improvement council for
the school from which the pupil was expelled.
(e) (f) Notwithstanding the preceding provisions of this
section, if a pupil has prior to the actions complained of being
classified as or is eligible to be classified as
an exceptional
a disabled child,
other than gifted, under the provisions of
section one, article twenty, chapter eighteen of this code,
special consideration shall be given to such pupil as hereinafter provided.
In any hearing held pursuant to this section, a pupil, his
parent or custodial guardian may show an explanation of the
actions complained of that such actions were the proximate result
of a condition which has qualified or would qualify the pupil for
a special educational program other than gifted. If the
principal or board finds that such actions were the proximate
result of such a condition, the pupil shall not be suspended or
expelled pursuant to this section but the pupil shall be
forthwith referred to the appropriate personnel within the county
school system for development of an individual learning program:
Provided, That such pupil may be temporarily removed from school
according to procedures employed by the school system for special
education pupils if, in the opinion of the principal, such
removal is necessary for his or her own protection or the
protection of other pupils, teachers, school personnel or school
property during all or some part of the time required to prepare
such individual learning program. A disabled child may not be suspended or expelled for conduct that is the proximate result of
the child's disability: Provided, that a disabled child may be
temporarily removed from school for his or her own protection,
the protection of school personnel, or the protection of other
pupils. A disabled child may not be temporarily removed,
suspended or expelled for a period of time in excess of three
consecutive school days or ten cumulative school days during a
school year, except that a disabled child who has committed a
violation involving the possession of a firearm or other deadly
weapon as defined in section two, article seven, chapter sixty-
one of this code, on the school premises or at a school-sponsored
function may be placed in an alternative educational setting by
the individualized education program committee, as described in
section one, article twenty, chapter eighteen of this code, for
a period of not more than forty-five days. During this time
period, the parent(s) or guardian(s) may request a hearing to
contest the change of placement. If the disabled child has
committed a violation involving the possession of a firearm, the disabled child shall remain in the alternative placement pending
the hearing. However, if the disabled child committed a
violation involving the possession of a deadly weapon, other than
a firearm, the disabled child shall remain in the original
placement pending the requested hearing unless the county board
of education and the parent(s) or guardian(s) otherwise agree.
(f) (g) In all hearings under this section, facts shall be
found by a preponderance of the evidence.
(g) For the purpose of this section, "school employee" means
a person employed by a county board of education whether employed
on a regular full-time basis, an hourly basis or otherwise if, at
the time of the commission of an act which would be grounds for
suspension or expulsion under this section, such person is
engaged in the performance of his duties or is commuting to or
from his place of employment. For the purposes of this section,
a "school employee" shall be deemed to include a student teacher.
(h) The remedies provided for in this section are cumulative.
(h) For purposes of this section, "deadly weapon" means an
instrument which is designed to be used to produce serious bodily
injury or death, or is readily adaptable to such use; The term
"deadly weapon" shall include, but is not limited to the
following, as defined in section two, article seven, chapter
sixty-one of this code: blackjack, gravity knife, knife,
switchblade knife, nunchuka, metallic or false knuckles, pistol,
revolver, or other deadly weapons of like kind or character which
may be easily concealed on or about the person.
(i) For purposes of this section, nothing herein shall be
construed to be in conflict with the federal provisions of the
Individuals with Disabilities Education Act of 1990 (PL 101-476).
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-11a. Possessing deadly weapons on premises of educational
facilities; reports by school principals; suspension of
driver license; possessing deadly weapons on premises
housing courts of law and in offices of family law master.
(a) The Legislature hereby finds that the safety and welfare
of the citizens of this state are inextricably dependent upon
assurances of safety for children
in attending, and the persons
employed by, school
s in this state and for those persons employed
with the judicial department of this state. It is for the
purpose of providing such assurances of safety, therefore, that
subsection
s (b)
, (g) and (h) of this section
is are enacted as a
reasonable regulation of the manner in which citizens may
exercise those rights accorded to them pursuant to section
twenty-two, article three of the Constitution of the state of
West Virginia.
(b)(1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon on any school bus as defined
in section one, article one, chapter seventeen-a of this code, or
in or on any public or private primary or secondary education
building, structure, facility or grounds thereof, including any
vocational education building, structure, facility or grounds
thereof where secondary vocational education programs are conducted
or at any school-sponsored function.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official
capacity;
(B) A person specifically authorized by the board of
education of the county or principal of the school where the
property is located to conduct programs with valid educational
purposes;
or
(C) A person who, as otherwise permitted by the provisions
of this article, possesses an unloaded firearm or deadly weapon
in a motor vehicle
, or leaves an unloaded firearm or deadly
weapon in a locked motor vehicle.
(3) Any person violating this subsection shall be guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars, or shall be confined in jail not
more than one year, or both.
(c) (1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon with the intent to commit a crime on any school bus or in or on any public or private primary
or secondary education building, structure, facility or grounds
thereof, including any vocational education building, structure,
facility or grounds thereof where secondary vocational education
programs are conducted.
(2)(3) Any person violating this subsection shall be guilty
of a felony, and, upon conviction thereof, shall be imprisoned in
the penitentiary of this state for a definite term of years of
not less than two years nor more than ten years, or fined not
more than five thousand dollars, or both.
(d) (c) It shall be the duty of the principal of each school
subject to the authority of the state board of education to
report any violation of subsection
s (b)
or (c) of this section
discovered by such principal to the state superintendent of
schools within seventy-two hours after such violation occurs.
The state board of education shall keep and maintain such reports
and may prescribe rules establishing policy and procedures for
the making and delivery of the same as required by this subsection. In addition, it shall be the duty of the principal
of each school subject to the authority of the state board of
education to report any violation of subsection (b)
or (c) of
this section discovered by such principal to the appropriate
local office of the division of public safety within seventy-two
hours after such violation occurs.
(e) (d) In addition to the methods of disposition provided
by article five, chapter forty-nine of this code, any court which
adjudicates a person who is fourteen years of age or older as
delinquent for a violation of subsection (b)
or (c) of this
section may, in its discretion, order the division of motor
vehicles to suspend any driver's license or instruction permit
issued to such person for such period of time as the court may
deem appropriate, such suspension, however, not to extend beyond
such person's nineteenth birthday; or, where such person has not
been issued a driver's license or instruction permit by this
state, order the division of motor vehicles to deny such person's
application for the same for such period of time as the court may deem appropriate, such denial, however, not to extend beyond such
person's nineteenth birthday. Any suspension ordered by the
court pursuant to this subsection shall be effective upon the
date of entry of such order. Where the court orders the
suspension of a driver's license or instruction permit pursuant
to this subsection, the court shall confiscate any driver's
license or instruction permit in the adjudicated person's
possession and forward the same to the division of motor
vehicles.
(f) (e) (1) If a person eighteen years of age or older is
convicted of violating subsection (b)
or (c) of this section, and
if such person does not act to appeal such conviction within the
time periods described in subdivision (2) of this subsection,
such person's license or privilege to operate a motor vehicle in
this state shall be revoked in accordance with the provisions of
this section.
(2) The clerk of the court in which the person is convicted
as described in subdivision (1) of this subsection shall forward to the commissioner a transcript of the judgment of conviction.
If the conviction is the judgment of a magistrate court, the
magistrate court clerk shall forward such transcript when the
person convicted has not requested an appeal within twenty days
of the sentencing for such conviction. If the conviction is the
judgment of a circuit court, the circuit clerk shall forward such
transcript when the person convicted has not filed a notice of
intent to file a petition for appeal or writ of error within
thirty days after the judgment was entered.
(3) If, upon examination of the transcript of the judgment
of conviction, the commissioner shall determine that the person
was convicted as described in subdivision (1) of this subsection,
the commissioner shall make and enter an order revoking such
person's license or privilege to operate a motor vehicle in this
state for a period of one year, or, in the event the person is a
student enrolled in a secondary school, for a period of one year
or until the person's twentieth birthday, whichever is the
greater period. The order shall contain the reasons for the revocation and the revocation period. The order of suspension
shall advise the person that because of the receipt of the
court's transcript, a presumption exists that the person named in
the order of suspension is the same person named in the
transcript. The commissioner may grant an administrative hearing
which substantially complies with the requirements of the
provisions of section two, article five-a, chapter seventeen-c of
this code upon a preliminary showing that a possibility exists
that the person named in the notice of conviction is not the same
person whose license is being suspended. Such request for
hearing shall be made within ten days after receipt of a copy of
the order of suspension. The sole purpose of this hearing shall
be for the person requesting the hearing to present evidence that
he or she is not the person named in the notice. In the event
the commissioner grants an administrative hearing, the
commissioner shall stay the license suspension pending the
commissioner's order resulting from the hearing.
(4) For the purposes of this subsection, a person is convicted when such person enters a plea of guilty or is found
guilty by a court or jury.
(g) (f) (1) It shall be unlawful for any parent, custodian
or other legal guardian of a person less than eighteen years of
age who knows that said person is in violation of subsection (b)
or (c) of this section, or who has reasonable cause to believe
that said person's violation of said subsection is imminent, to
fail to
immediately report such knowledge or belief to the
appropriate school or law-enforcement officials.
(2) Any person violating this subsection shall be guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars, or shall be confined in jail not
more than one year, or both.
(h) (g) (1) It shall be unlawful for any person to possess
any firearm or any other deadly weapon on any premises which
houses a court of law or in the offices of a family law master.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official capacity; and
(B) A person exempted from the provisions of this subsection
by order of record entered by a court with jurisdiction over such
premises or offices.
(3) Any person violating this subsection shall be guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars, or shall be confined in jail not
more than one year, or both.
(i) (h) (1) It shall be unlawful for any person to possess
any firearm or any other deadly weapon on any premises which
houses a court of law or in the offices of a family law master
with the intent to commit a crime.
(2) Any person violating this subsection shall be guilty of
a felony, and, upon conviction thereof, shall be imprisoned in
the penitentiary of this state for a definite term of years of
not less than two years nor more than ten years, or fined not
more than five thousand dollars, or both.
(i) Nothing in this section shall be construed to be in conflict with the provisions of federal law.