ENROLLED
H. B. 2740
(By Delegates Martin, Love, Michael, Fragale,
Heck, Higgins and Willison)
[Passed April 10, 1993; in effect July 1, 1993.]
AN ACT to amend and reenact article ten, chapter four of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, relating to the West Virginia sunset law; outlining
need for legislative oversight of state government;
establishing termination schedule for departments, agencies
or boards following performance audits, financial audits,
and preliminary performance reviews; outlining powers of
departments, agencies or boards following termination;
requiring acts which create new departments, agencies or
boards to include termination provisions; outlining
membership, compensation, powers and duties of joint
committee on government operations; permitting joint
committee on government operations to collect auditing or
reviewing costs from departments, agencies or boards;
establishing criteria for performance audits, financial
audits and preliminary performance reviews; permitting
joint committee on government operations to alter
termination schedule; requiring reports by the committee;
and establishing criteria for bills continuing or
reestablishing departments, agencies or boards.
Be it enacted by the Legislature of West Virginia:
That article ten, chapter four of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and
reenacted to read as follows:
§4-10-1. Short title.
This article shall be known as and may be cited as the "West
Virginia Sunset Law."
§4-10-2. Legislative findings.
The Legislature finds that state governmental actions have
produced substantial increases in the number of governmental
entities, growth in the number of governmental programs,
proliferation of rules and regulations, and that the process
developed without sufficient legislative oversight, regulatory
accountability or an effective system of checks and balances;
that governmental entities have been created without demonstrable
evidence that their benefits to the public clearly justify their
creation; that once established, governmental entities tend to
acquire permanent status, often without regard for the condition
which gave rise to their establishment; that the personnel of
such entities are often beyond the effective control of elected
officials, and efforts to encourage modernization or even to
review performance have typically proven difficult at best; that
too often, governmental entities acquire a combination of
autonomy and authority inconsistent with democratic principles
and acquire a capacity for self-perpetuation incompatible with
principles of accountability; and that by establishing a system
for the termination, continuation or reestablishment of suchgovernmental entities, the position of the Legislature to
evaluate the need for the continued existence of existing and
future governmental entities will be enhanced.
§4-10-3. Definitions.
As used in this article, unless the context clearly
indicates a different meaning:
(1) "Committee" means the joint committee on government
operations, hereinafter created, to perform duties under this
article.
(2) "Department" means any office or division, headed by a
gubernatorial appointee, within the state of West Virginia.
(3) "Agency" means any department, division, fund, office,
position, system, survey or other entity of state government,
however designated, in the state of West Virginia.
(4) "Board" means any board, commission, authority, council,
advisory body, or other body, however designated, consisting of
two or more members, in the state of West Virginia.
(5) "Performance audit" means to determine for a department,
agency, or board whether the department, agency or board is
acquiring, protecting and using its resources economically and
efficiently; the causes of inefficiencies or fiscally unsound
practices; and whether the department, agency or board has
complied with laws and regulations concerning matters of economy
and efficiency. Also, a performance audit may include
determining the extent to which the desired results or benefits
established by the legislature are being achieved by the
department, agency or board; the effectiveness of organizations,
programs, activities or functions; and whether the department,agency or board has complied with laws and regulations applicable
to the program.
(6) "Financial audit" means to determine for a department,
agency, board or person whether the financial statements of the
audited department, agency or board present fairly the financial
position, results of operations and cash flows or changes in
financial position in accordance with generally accepted
accounting principles; and whether the department, agency or
board has complied with laws and regulations for those
transactions and events that may have a material effect on the
financial statements.
(7) "Preliminary performance review" means to determine the
goals and objectives of a department, agency, or board; and to
determine the extent to which plan of a department, agency, board
has met or is meeting those goals and objectives.
§4-10-4. Termination of departments, agencies or boards
following performance audits.
The following departments, agencies or boards shall be
terminated on the date indicated, but no department, agency or
board shall be terminated under this section unless a performance
audit has been conducted upon such department, agency or board:
(1) On the first day of July, one thousand nine hundred
ninety-four: Division of labor; division of tourism and parks;
division of corrections; division of natural resources; and
division of highways.
(2) On the first day of July, one thousand nine hundred
ninety-five: Division of environmental protection.
(3) On the first day of July, one thousand nine hundredninety-six: Division of culture and history; division of
personnel.
(4) On the first day of July, one thousand nine hundred
ninety-seven: Department of health and human resources.
§4-10-5. Termination of agencies or boards following
preliminary performance reviews.
The following agencies or boards shall be terminated on the
date indicated, but no agency or board shall be terminated under
this section unless a preliminary performance review has been
conducted upon such agency or board:
(1) On the first day of July, one thousand nine hundred
ninety-four: State water resources board; office of water
resources of the division of environmental protection; farm
management commission; West Virginia ethics commission; family
law masters system; child advocate office of the department of
health and human resources; family protection services board;
state structural barriers compliance board; board of architects;
state building commission; oil and gas inspectors' examining
board; public employees insurance agency; public employees
insurance agency finance board; Ohio River valley water
sanitation commission; veteran's council; share in your future
commission; southern regional education board; and the real
estate commission.
(2) On the first day of July, one thousand nine hundred
ninety-five: Emergency medical services advisory council;
commission on charitable organizations; information system
advisory commission; West Virginia labor-management council;
board of social work examiners; the rural health initiativeadvisory panel; and the marketing and development divisions of
the department of agriculture.
(3) On the first day of July, one thousand nine hundred
ninety-six: U.S. geological survey program and whitewater
commission within the division of natural resources; state
geological and economic survey; and the board of investments.
(4) On the first day of July, one thousand nine hundred
ninety-seven: The driver's licensing advisory board; West
Virginia health care cost review authority; governor's cabinet on
children and families; oil and gas conservation commission; and
the West Virginia contractors' licensing board.
(5) On the first day of July, one thousand nine hundred
ninety-eight: State lottery commission; the following divisions
or programs of the department of agriculture: Meat inspection
program and soil conservation committee; women's commission;
state board of risk and insurance management; board of examiners
of land surveyors; commission on uniform state laws; council of
finance and administration; forest management review commission;
West Virginia's membership in the interstate commission on the
Potomac River basin; legislative oversight commission on
education accountability; and the board of examiners in
counseling; board of examiners in speech pathology and audiology.
(6) On the first day of July, one thousand nine hundred
ninety-nine: Board of banking and financial institutions;
capitol building commission; tree fruit industry self-improvement
assessment program; and the public service commission..
§4-10-6. Continuance of department, agency or board after
termination and purpose therefor; continuance of
powers and authority after termination; cessation of
all activities; reestablishment of terminated
department, agency or board.
Upon termination, each department, agency or board shall
continue in existence until the first day of July of the next
succeeding year for the purpose of winding up its affairs.
During that year, the impending termination shall not reduce or
otherwise limit the powers or authority of that terminated
department, agency or board. Any funds for such department,
agency or board shall revert to the fund from which they were
appropriated or, if that fund is abolished, to the General
Revenue Fund. Upon the expiration of one year after termination,
the department, agency or board shall cease all activities:
Provided,
That a department, agency or board which has been
terminated pursuant to the provisions of this article, may be
reestablished by the Legislature, and if reestablished by the
legislature during the winding-up period with substantially the
same powers, duties, or functions, the department, agency or
board shall be deemed to have been continued.
§4-10-7. Continuation or reestablishment of departments,
agencies or boards scheduled for termination.
The life of any department, agency, or board scheduled for
termination under this section may be continued or reestablished
by the Legislature for a period of time not to exceed six years.
Any act which creates a new department, agency, or board and
which is enacted after the effective date of this article shall
provide for termination and review of the newly-created
department, agency or board pursuant to this article within sixyears after the effective date of the act which creates the
department, agency or board.
§4-10-8. Joint committee on government operations continued;
membership; compensation and expenses; meetings.
The joint committee on government operations, heretofore
created, is hereby continued. The committee shall be composed of
five members of the Senate, to be appointed by the president
thereof, no more than three of whom shall be appointed from the
same political party; five members of the House of Delegates, to
be appointed by the speaker thereof, no more than three of whom
shall be appointed from the same political party:
Provided,
That
in the event the membership of a political party is less than
fifteen percent in the House of Delegates or Senate, that the
membership of that political party from the legislative house
with less than fifteen percent membership may be one from that
house; and five citizens of this state who are not legislators,
public officials or public employees, to be appointed by the
governor to serve at his will and pleasure, not more than three
of whom shall be appointed from the same political party, and at
least one of whom shall reside in each congressional district of
this state. The committee shall be headed by two cochairmen, one
to be selected by the president of the Senate from the members
appointed from the Senate, and one to be selected by the speaker
of the House of Delegates from the members appointed from the
House of Delegates. All members of the committee shall serve
until their successors shall have been appointed as heretofore
provided. Members of the committee shall receive such
compensation and reimbursement for expenses in connection withperformance of interim duties between regular sessions of the
Legislature as may be authorized by the citizens legislative
compensation commission established by section thirty-three,
article six of the constitution of West Virginia. Each citizen
member of the committee shall receive such compensation as the
legislative interim members receive, in addition to reimbursement
for necessary expenses incurred in the performance of duties
under this article, such reimbursement to be subject to the same
limitations as govern the expenses of the legislative members of
the committee. Compensation and expenses shall be paid from an
appropriation to be made expressly for the committee, but if no
such appropriation be made or the total amount appropriated has
been expended, such expenses shall be paid from the appropriation
under "Account No. 103 for Joint Expenses," but no expense of any
kind whatever payable under said Account No. 103 for joint
expenses shall be incurred unless first approved by the joint
committee on government and finance. The committee shall meet
upon call of the cochairmen or either of them and may meet at any
time, both during sessions of the Legislature and in the interim.
§4-10-9. Powers of the committee; failure of witnesses to
appear, testify or produce records; public hearings;
allowance of per diem and mileage for witnesses;
hiring of necessary employees; permitting committee to
collect costs associated with audits or reviews.
In order to carry out the duties set forth in this article,
the committee, or any duly authorized employee of the committee,
shall have access to any and all records of every department,
agency or board scheduled for termination under the provisions ofsection four of this article.
In addition to its regular and special meetings, the
committee, or any employee duly authorized by the committee, is
empowered to hold public hearings in furtherance of the purposes
of this article, at such times and places within the state as may
be deemed desirable, and any member of the committee shall have
the power to administer oaths to persons testifying at such
hearings or meetings.
By subpoena, issued over the signature of either cochairman
of the committee and served in the manner provided by law, the
committee may summon and compel the attendance of witnesses and
their examination under oath and the production of all books,
papers, documents and records necessary or convenient to be
examined and used by the committee in the performance of its
duties. If any witness subpoenaed to appear at any hearing or
meeting shall refuse or fail to appear or to answer questions put
to him, or shall refuse or fail to produce books, papers,
documents, or records within his control when the same are
demanded, the committee, in its discretion, may enforce obedience
to its subpoena by attachment, fine or imprisonment, as provided
in section five, article one of this chapter; or it may report
the facts to the circuit court of Kanawha County or any other
court of competent jurisdiction and such court shall compel
obedience to the subpoena as though such subpoena had been issued
by such court in the first instance.
Witnesses subpoenaed to attend such hearings or meetings,
except officers or employees of the state, shall be allowed the
same mileage and per diem as is allowed witnesses before anypetit jury.
The joint committee on government operations, subject to the
approval of the joint committee on government and finance, may
employ such persons, skilled in the field of performance audit,
financial audit or preliminary performance review as it may deem
necessary to carry out its duties and responsibilities under this
article, and may contract for outside expertise in conducting
technical or specialized performance audits.
The joint committee on government operations may collect,
and the department, agency or board shall pay, any or all of the
costs associated with conducting the performance audits,
financial audits or preliminary performance reviews from the
department, agency or board being audited or reviewed, when
necessary and desirable. The joint committee on government
operations shall render to the department, agency or board liable
for such costs a statement thereof as soon after the same were
incurred as practicable, and it shall be the duty of such
department, agency or board to pay promptly in the manner that
other claims and accounts are paid. All money received by the
joint committee on government operations from this source shall
be expended only for the purpose of covering the costs associated
with such services, unless otherwise directed by the Legislature.
§4-10-10. Performance and financial audits of governmental
departments and agencies by the committee.
It shall be the duty of the committee to conduct a
performance audit and a financial audit in accordance with
generally accepted government auditing standards as promulgated
by the federal general accounting office of every department oragency scheduled for termination under section four of this
article to ascertain whether there is a demonstrable need for the
continuation of the department or agency and whether the
department or agency should be continued.
In conducting performance audits, the committee may
determine the following:
(1) If the department or agency was created to resolve a
problem or provide a service.
(2) If the problem has been solved or the service has been
provided.
(3) The extent to which past department or agency
activities and accomplishments, current projects and operations,
and planned activities and goals for the future are or have been
effective.
(4) If the department or agency is operating efficiently
and effectively in performing its task.
(5) The extent to which there would be significant and
discernible adverse effects on the public health, safety, or
welfare if the department or agency were abolished.
(6) If the conditions which led to the creation of the
agency have changed.
(7) The extent to which the department or agency operates
in the public interest.
(8) Whether or not the operation of the department or
agency is impeded or enhanced by existing statutes, rules,
procedures, practices or any other circumstances bearing upon the
department or agency's capacity or authority to operate in the
public interest, including budgetary, resource and personnelmatters.
(9) The extent to which administrative and/or statutory
changes are necessary to improve agency operations or to enhance
the public interest.
(10) Whether or not the benefits derived from the
activities of the department or agency outweigh the costs.
(11) If the activities of this department or agency
duplicate or overlap with those of other departments or agencies,
and if so, how these activities could be consolidated.
(12) Whether or not the department or agency causes an
unnecessary burden on any citizen or other department or agency
by its decisions and activities.
(13) What the impact will be in terms of federal
intervention or loss of federal funds if the agency is abolished.
The committee may direct that the performance audit focus on
a specific area of operation within the department or agency, and
may direct further inquiry, when necessary and desirable, into
other areas of concern, including, but not limited to:
(1) The economic impact which results from the functions of
the department or agency.
(2) The extent to which complaint, investigation, and/or
disciplinary procedures of the department or agency adequately
protect the public, and whether or not final dispositions of
complaints serve the public interest.
(3) The extent to which the department or agency issues and
enforces rules relating to the potential conflicts of interest of
its employees.
(4) Whether or not the department or agency is incompliance with federal and state affirmative action
requirements.
(5) Whether or not the department or agency encourages
participation by the public in the decision making process.
Financial audits may include audits of the following items:
(1) Segments of financial statements.
(2) Financial information.
(3) Reports and schedules on financial matters, such as
expenditures for specific programs or services, budget requests,
and variances between estimated and actual financial performance.
(4) Contracts.
(5) Grants.
(6) Internal control systems and structure over accounting,
financial reporting, and transaction processing.
(7) Computer-based systems.
(8) Financial systems.
(9) Evidence of fraud.
§4-10-11. Preliminary performance reviews of governmental boards
and agencies by the committee.
It shall be the duty of the committee to conduct a
preliminary performance review of every board or agency scheduled
under section five of this article. In conducting such
preliminary performance reviews, the committee shall determine
the following:
(1) If the board or agency was created to solve a problem
or provide a service.
(2) If the problem has been solved or the service has been
provided.
(3) The extent to which past board or agency activities and
accomplishments, current projects and operations, and planned
activities and goals for the future are or have been effective.
(4) The extent to which there would be significant and
discernible adverse effects on the public health, safety, or
welfare if the board or agency were abolished.
(5) Whether or not the board or agency operates in a sound
fiscal manner.
The joint committee may direct that the focus of the
preliminary performance review be on a specific area of operation
and may direct further inquiry, when necessary and desirable.
§4-10-12. Reports by the committee.
The committee shall complete its deliberations with respect
to any department, agency or board scheduled for termination and
make a report thereon to the Legislature not later than ten days
after the Legislature convenes in regular session in the year of
the scheduled termination for the department, agency or board:
Provided,
That any such report required in the year one thousand
nine hundred eighty-one, and every fourth year thereafter shall
be made not later than ten days after the Legislature convenes on
the second Wednesday in February. Such report shall consist of
an analysis of the department, agency or board including such
matters as are expressly mandated to be considered by the
committee as set forth in this article, together with the
recommendations of the committee. The committee shall make one
of five recommendations: (1) The department, agency or board be
terminated as scheduled; (2) the department, agency or board be
continued and reestablished; (3) the department, agency or boardbe continued and reestablished, but the statutes governing it be
amended in specific ways to correct ineffective or discriminatory
practices and procedures, burdensome rules and regulations, lack
of protection of the public interest, overlapping of jurisdiction
with other governmental entities, unwarranted exercise of
authority either in law or in fact or any other deficiencies; (4)
a performance audit be performed on a department, agency or board
on which a preliminary review has been completed; or (5) the
department, agency or board be continued for a period of time not
to exceed one year for the purpose of completing a full
performance audit.
Copies of such reports shall be made immediately available
to all members of the Legislature, to the department, agency or
board which is the subject of the report and the public
generally. A copy of each report shall be formally filed by the
committee with the clerk of each house.
§4-10-13. Bill for continuation and reestablishment of affected
department, agency or board.
In the event the committee recommends the continuation and
reestablishment of a department, agency or board pursuant to this
article, its report shall be accompanied by a bill to effectuate
its recommendation.
Pursuant to the processes of this article, no more than one
such department, agency or board shall be continued or
reestablished in a bill, and such department, agency or board
shall be mentioned in the bill's title.
§4-10-14. Preservation of rights and claims.
Nothing in this article shall be construed as adverselyaffecting any right or claim by any person against a governmental
department, agency or board or by any governmental department,
agency or board against any person. Responsibility for
prosecuting or defending any such rights or claims should the
Legislature fail to continue and reestablish a department, agency
or board within one year after its termination shall be assumed
by the attorney general of the state.
§4-10-15. Article not to be construed as limiting new
legislation.
Nothing in this article shall be construed as limiting or
interfering with the right of any member of the Legislature to
introduce or of the Legislature to consider any bill that would
create a new state governmental department, agency or board or
amend the law with respect to an existing one.
NOTE: The purpose of this bill is to revise West Virginia's
sunset law. This bill reorganizes the termination schedule for
departments, agencies and boards within the government by placing
larger departments on a six-year schedule requiring full
performance and financial audits, while placing smaller agencies
and boards on a twelve-year schedule requiring full performance
and financial audits every twelve years, with preliminary
performance reviews at the six-year point in the twelve-year
schedule. The joint committee on government operations is
authorized to bill agencies for costs incurred by the audits or
reviews. The joint committee is also authorized to hire, subject
to the approval of the joint committee on government and finance,
persons to perform the audits. Criteria is set forth in detail
for the performance audits, financial audits, and preliminary
performance reviews. The bill requires that any act creating a
new department, agency or board must include sunset provisions.
Email
Webmaster | © 2024 West Virginia Legislature **
