H. B. 2735
(By Delegates Amores, Rowe and Buchanan)
[Introduced March 26, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section six, article one, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to clarifying
status of division of environmental protection in-house
counsel.
Be it enacted by the Legislature of West Virginia:
That section six, article one, chapter twenty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-6. Director of the division of environmental protection.
(a) The director is the chief executive officer of the
division. Subject to section seven of this article and other
provisions of law, the director shall organize the division into
such offices, sections, agencies and other units of activity as
may be found by the director to be desirable for the orderly,
efficient and economical administration of the division and for
the accomplishment of its objects and purposes. The director may appoint assistants, hearing officers, clerks, stenographers and
other officers, technical personnel and employees needed for the
operation of the division and may prescribe their powers and
duties and fix their compensation within amounts appropriated
therefor.
(b) The director has the power to and may designate
supervisory officers or other officers or employees of the
division to substitute for him or her on any board or commission
established under this code or to sit in his or her place in any
hearings, appeals, meetings or other activities with such
substitute having the same powers, duties, authority and
responsibility as the director. Additionally, the director has
the power to delegate, as he or she considers appropriate, to
supervisory officers or other officers or employees of the
division his or her powers, duties, authority and responsibility
relating to issuing permits, hiring and training inspectors and
other employees of the division, conducting hearings and appeals
and such other duties and functions set forth in this chapter or
elsewhere in this code.
(c) The director has responsibility for the conduct of the intergovernmental relations of the division, including assuring:
(1) That the division carries out its functions in a manner which
supplements and complements the environmental policies, programs
and procedures of the federal government, other state governments
and other instrumentalities of this state; and (2) that
appropriate officers and employees of the division consult with
individuals responsible for making policy relating to
environmental issues in the federal government, other state
governments and other instrumentalities of this state concerning
differences over environmental policies, programs and procedures
and concerning the impact of statutory law and rules upon the
environment of this state.
(d) In addition to other powers, duties and
responsibilities granted and assigned to the director by this
chapter, the director is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the
"division of environmental protection" any contract or agreement
with the federal government or its departments or agencies,
subdivisions of the state, corporations, associations,
partnerships or individuals: Provided, That the powers granted
to the director to enter into agreements or contracts and to make
expenditures and obligations of public funds under this
subdivision 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 pursuant to the
provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection
methods and disseminate information to the citizens of this
state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violations
of statutes or rules which the division is charged with
enforcing; to serve and execute warrants and processes; to make
arrests; issue orders, which for the purposes of this chapter
include consent agreements; and to otherwise enforce the statutes
or rules which the division is charged with enforcing;
(4) Acquire for the state in the name of the "division of
environmental protection" by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the
division of environmental protection, gifts, donations,
contributions, bequests or devises of money, security or
property, both real and personal, and any interest in such
property;
(5) Provide for workshops, training programs and other
educational programs, apart from or in cooperation with other
governmental agencies, necessary to insure adequate standards of public service in the division. The director may also provide
for technical training and specialized instruction of any
employee. Approved educational programs, training and
instruction time may be compensated for as a part of regular
employment. The director is further authorized to pay out of
federal or state funds, or both, as such funds are available,
fees and expenses incidental to such educational programs,
training, and instruction. Eligibility for participation by
employees will be in accordance with guidelines established by
the director;
(6) Issue certifications required under 33 U.S.C. §1341.
Prior to issuing any such certification the director shall
solicit from the division of natural resources reports and
comments concerning the possible certification. The reports and
comments shall be directed from the division of natural resources
to the director for consideration; and
(7) Notwithstanding any provisions of this code to the
contrary, employ in-house counsel to perform all legal services
for the director and the division, including, but not limited to,
representing the director, any chief, the division or any office
thereof in any administrative proceeding or in any proceeding in
any state or federal court, said counsel to be classified-exempt.
Additionally, the director may call upon the attorney general for
legal assistance and representation as provided by law.
(e) The director shall be appointed by the governor, by and
with the advice and consent of the Senate, and serves at the will
and pleasure of the governor: Provided, That in lieu of
appointing a director, the governor may order the secretary to
directly exercise the powers of the director. The secretary
shall designate the order in which other officials of the
division shall act for and perform the functions of the secretary
or the director during the absence or disability of both the
secretary and the director or in the event of vacancies in both
of those offices.
(f) At the time of his or her initial appointment, the
director shall be at least thirty years old and shall be selected
with special reference and consideration given to his or her
administrative experience and ability, to his or her demonstrated
interest in the effective and responsible regulation of the
energy industry and the conservation and wise use of natural
resources. The director shall have at least a bachelor's degree
in a related field and shall have at least three years of
experience in a position of responsible charge in at least one
discipline relating to the duties and responsibilities for which
the director will be responsible upon assumption of the office of
director. The director shall not be a candidate for or hold any
other public office, shall not be a member of any political party
committee and shall immediately forfeit and vacate his or her office as director in the event he or she becomes a candidate for
or accepts appointment to any other public office or political
party committee.
(g) The director shall receive an annual salary of sixty- five thousand dollars and shall be allowed and paid necessary
expenses incident to the performance of his or her official
duties. Prior to the assumption of the duties of his or her
office, the director shall take and subscribe to the oath
required of public officers prescribed by section five, article
IV of the constitution of West Virginia and shall execute a bond,
with surety approved by the governor, in the penal sum of ten
thousand dollars, which executed oath and bond shall be filed in
the office of the secretary of state. Premiums on the bond shall
be paid from the division funds.
NOTE: The purpose of this bill is to clarify that the
division of environment protection's in-house counsel are exempt
from coverage under the classified service.
WORDS
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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