ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 137
(Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive, original sponsors)
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[Passed March 13, 1999; in effect ninety days from passage.]
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AN ACT to to amend and reenact sections one, one-a and one-b,
article three, chapter twelve of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; to further
amend said chapter by adding thereto a new article,
designated article three-a; and to amend and reenact section
twelve-b, article eight, chapter thirty-one-a, all relating
to receipting and disbursing of funds from the state
treasury; authorizing information regarding uncashed state
checks to only be disclosed to the state agency or payee;
clarifying procedures for electronic warrants and direct
deposits; facilitating electronic commerce involving state
agencies; stating legislative purpose of financial
electronic commerce for state agencies; providing
definitions; requiring state auditor and state treasurer to implement electronic commerce capabilities to facilitate
performance of their duties; requiring auditor and treasurer
to competitively bid necessary banking, investment and
related services for their offices; ensuring records and
authentications of the auditor and treasurer are not denied
legal effect solely on ground they are in electronic form;
requiring heads of spending units to be responsible for
security procedures when using electronic commerce;
authorizing auditor to establish a state debit card known as
the West Virginia check card for recipients of payroll or of
benefits or entitlement programs without bank accounts;
authorizing treasurer to contract with banking and other
institutions to establish point of sale terminals for
acceptance of the "West Virginia Check Card" and electronic
benefit funds cards issued by state spending units and
ensuring the state does not use the equipment to compete
with private sector providers or for profit; authorizing the
treasurer to establish a system for acceptance of credit
cards and other payment methods for electronic commerce
purchases and requiring spending units to utilize the
treasurer's system; establishing a special revenue account
for receipt of fees related to the POS transactions;
ensuring that cash withdrawals for these programs in excess
of fifty dollars is not banking; and limiting fees for use of a West Virginia check card or an electronic benefits
transfer card to the higher of one dollar or one percent of
the amount of cash withdrawn.
Be it enacted by the Legislature of West Virginia:
That sections one, one-a and one-b, article three, chapter
twelve of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that said
chapter be further amended by adding thereto a new article,
designated article three-a; and that section twelve-b, article
eight, chapter thirty-one-a be amended and reenacted, all to read
as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS.
§12-3-1. Manner of payment from treasury; form of checks.
Every person claiming to receive money from the treasury
of the state shall apply to the auditor for a warrant for same.
The auditor shall thereupon examine the claim, and the vouchers,
certificates and evidence, if any, offered in support thereof,
and for so much thereof as he or she finds to be justly due from
the state, if payment thereof is authorized by law, and if there
is an appropriation not exhausted or expired out of which it is
properly payable, the auditor shall issue his or her warrant on
the treasurer, specifying to whom and on what account the money
mentioned therein is to be paid, and to what appropriation it is to be charged. The auditor shall present to the treasurer daily
reports on the number of warrants issued, the amounts of the
warrants and the dates on the warrants for the purpose of
effectuating the investment policy of the investment management
board. On the presentation of the warrant to the treasurer, the
treasurer shall ascertain whether there are sufficient funds in
the treasury to pay that warrant, and if he or she finds it to be
so, he or she shall in that case, but not otherwise, endorse his
or her check upon the warrant, directed to some depository, which
check shall be payable to the order of the person who is to
receive the money therein specified. If the check is not
presented for payment within six months after it is drawn, it
shall then be the duty of the treasurer to credit it to the
depository on which it was drawn, to credit the unclaimed
property fund pursuant to the provisions of article eight,
chapter thirty-six of this code, and immediately notify the
auditor to make corresponding entries on the auditor's books. No
state depository may pay a check unless it is presented within
six months after it is drawn and every check shall bear upon its
face the words "Void, unless presented for payment within six
months." Any information or records maintained by the treasurer
concerning any check which has not been presented for payment
within six months of the date of issuance may only be disclosed
to the state agency specified on the check, or to the payee, his or her personal representative, next of kin or attorney-at-law
and is otherwise confidential and exempt from disclosure under
the provisions of article one, chapter twenty-nine-b of this
code. All claims required by law to be allowed by any court, and
payable out of the state treasury, shall have the seal of the
court allowing or authorizing the payment of the claim affixed by
the clerk of the court to his or her certificate of its
allowance. No claim may be audited and paid by the auditor
unless the seal of the court is thereto attached as aforesaid.
No tax or fee may be charged by the clerk for affixing his or her
seal to the certificate, referred to in this section. The
treasurer shall propose rules in accordance with the provisions
of article three, chapter twenty-nine-a of this code governing
the procedure for such payments from the treasury.
§12-3-1a. Payment by deposit in bank account.
The auditor may issue his warrant on the treasurer to pay
any person claiming to receive money from the treasury by deposit
to the person's account in any bank or other financial
institution by electronic funds transfer, if the person furnishes
authorization of the method of payment. The auditor shall
prescribe the form of the authorization. If the authorization is
in written form, it shall be sent to the auditor for review and
approval and then forwarded in electronic form to the treasurer.
If the authorization is in electronic form, it shall be sent to both the auditor and the treasurer. The auditor must review and
approve the authorization. This section shall not be construed
to require the auditor to utilize the method of payment
authorized by this section. An authorization furnished pursuant
to this section may be revoked by written notice furnished to the
auditor and then forwarded by the auditor in electronic form to
the treasurer or by electronic notice furnished to both the
auditor and the treasurer. Upon execution of the authorization
and its receipt by the office of the auditor, the warrant shall
be created in the manner specified on the authorization and
forwarded to the treasurer for further disposition to the
designated bank or other financial institution specified on the
electronic warrant:
Provided, That after the first day of July,
two thousand two, the state auditor shall cease issuing paper
warrants except for income tax refunds. After that date all
warrants, except for income tax refunds, shall be issued by
electronic funds transfer:
Provided, however, That the auditor,
in his or her discretion, may issue paper warrants on an
emergency basis:
Provided further, That the treasurer and the
auditor may contract with any bank or financial institution for
the processing of electronic authorizations.
§12-3-1b. Voluntary direct deposits by auditor of salaries of
employees to banks or other financial institutions
Any officer or employee of the state of West Virginia may authorize the direct deposit of his or her net wages to his or
her account in any bank or other financial institution by
electronic funds transfer. Direct deposit authorizations shall
comply with the requirements of section one-a of this article.
Upon approval of an authorization, the auditor shall issue the
warrant in the manner specified on the authorization and forward
the warrant to the treasurer for further disposition to the
designated bank or other financial institution on or before the
day or days the officer or employee is due his or her net wages.
Direct deposit authorizations may be revoked at any time thirty
days prior to the date on which the direct deposit is regularly
made and on a form to be provided by the auditor:
Provided, That
on and after the first day of July, two thousand two, at the
option of the auditor, all wages shall be deposited directly into
the employees' account at any bank or financial institution
designated by the employee via electronic funds transfer or, if
the employee does not have a bank account, through the West
Virginia check card program in accordance with section four,
article three-a of this chapter.
ARTICLE 3A. FINANCIAL ELECTRONIC COMMERCE.
§12-3A-1. Legislative purpose and findings.
The Legislature finds that state government should
facilitate and promote electronic commerce, particularly in the
electronic receipting and disbursing of state funds. As many individuals receiving recurring state funds do not have bank
accounts for the purpose of receiving direct deposits, and as the
state desires that all payments be made electronically by the
year two thousand two, it is the intent of the Legislature to
provide a mechanism for all payees to receive payments by
electronic funds transfers through direct deposit or through
state issued debit cards. Further, as usage of electronic
commerce grows, state spending units need the ability to accept
payments electronically. To meet these goals, the Legislature
seeks to ensure proper management oversight and accountability
are maintained.
§12-3A-2. Definitions.
(a)"Electronic" means electrical, digital, magnetic,
wireless, optical, electromagnetic, biometric, or any other
technology that is similar to these technologies.
(b)"Electronic commerce" means using electronic
techniques for accomplishing business transactions, including
electronic mail or messaging, electronic bulletin board, internet
technology, electronic funds transfers, electronic data
interchange (EDI) techniques, and any other related electronic
technologies.
(c)"Security procedure" means a methodology or
procedure for the purpose of:
(1)Preventing access by unauthorized parties;
(2)Verifying that an electronic record or electronic
signature is that of a specific party or created by a specific
electronic point of origin; or
(3)Detecting error or alteration in the
communication, content, or storage of an electronic record since
a specific point in time.
(d)"WEB commerce" means electronic commerce on the
internet.
§12-3A-3. Financial electronic commerce.
The state auditor and the treasurer shall implement
electronic commerce capabilities for each of their offices to
facilitate the performance of their duties under this code. The
state auditor and the state treasurer shall competitively bid the
selection of vendors needed to provide the necessary banking,
investment and related services for their offices, and the
provisions of article one-b, chapter five, and articles three and
seven, chapter five-a of this code shall not apply, unless
requested by the state auditor or state treasurer.
A record or an authentication used by the auditor or the
treasurer may not be denied legal effect solely on the ground
that it is in electronic form.
The head of each spending unit is responsible for
adopting and implementing security procedures to ensure adequate
integrity, security, confidentiality, and auditability of the business transactions of his or her spending unit when utilizing
electronic commerce.
§12-3A-4. Payment by the West Virginia check card.
The state auditor may establish a state debit card known
as the "West Virginia Check Card" for recipients of employee
payroll or of benefits or entitlement programs processed by the
auditor who are considered unbanked and who do not possess a
federally insured depository institution account. The state
auditor shall use every reasonable effort to make a federally
insured depository account available to a recipient, and to
encourage all recipients to obtain a federally insured depository
account. Prior to issuing the West Virginia check card, the state
auditor shall first make a determination that a recipient has
shown good cause that an alternative method to direct deposit is
necessary. The state auditor and the state treasurer shall
jointly issue a request for proposals in accordance with section
three of this article to aid the auditor in the administration of
the program and to aid the treasurer in the establishment of
state owned bank accounts and accommodate accessible locations
for use of the West Virginia check card. In carrying out the
purposes of this article, the state auditor and state treasurer
shall not compete with banks or other federally insured financial
institutions, or for profit.
§12-3A-5. Limited establishment and use of point of sale terminals, etc., for special purposes and circumstances
relating to certain public assistance payments.
(a)The state treasurer shall have authority to
contract with banking institutions and other entities to
establish point of sale terminals ("POS terminals"), as defined
in section twelve-b, of article eight, chapter thirty-one-a of this
code, that accept the West Virginia check card and the cards
issued by state spending units to recipients of state or federal
funds, food or other benefits. If other entities decline to
provide the POS terminals in a manner that meets the requirements
of this section, the treasurer is authorized to establish, own
and operate POS terminals. The treasurer may place the POS terminals and associated equipment at any location within this
state where he or she or the department of health and human
resources determines the equipment is needed to provide
reasonable access to users of the cards. The POS terminals
authorized pursuant to this section may be used to provide any
amount of cash payment or allowable purchase of retail items or
other benefits as determined by the state treasurer, pursuant to
state law and rules and, where necessary, in cooperation with any
appropriate federal agencies.
(b)POS terminals established pursuant to this section
may be jointly owned and operated with private sector financial
institutions and may be established for the sole purpose of
providing access to electronically transmitted government
benefits or payments. However, if the state treasurer
establishes POS terminals, they shall be made available for use
by the general public and the retailer shall reimburse the state
for each transaction as per an agreement entered into at the time
the POS terminals are established.
(c)Any retailer, agency or other person providing
cash withdrawal services for state administered electronic cards
from its own funds through POS terminals established pursuant to this section are limited to charging a fee for the service in the
amount of the higher of one dollar or one percent of the amount
of cash withdrawn.
(d)There is hereby created in the state treasury a
separate special revenue account, which shall be an interest
bearing account, to be known as the "Point of Sale Terminals
Collection Account". The account shall contain any funds
received from transactions on POS terminals installed by the
state treasurer and any other funds authorized by the
Legislature. Moneys in the account shall be used by the
treasurer to pay the fees and costs associated with the POS
terminals and related equipment, and for such other purposes as
determined by the Legislature.
(e)In carrying out the purposes of this article, the
treasurer shall not compete with private sector providers of POS
terminals, banks or other financial institutions, or for profit.
If a private sector provider, bank or other financial institution
certifies to the treasurer that it can provide POS terminals to
meet the requirements contained within this article, the
treasurer shall not establish or maintain equipment in the
locations identified in the certification. Nothing in this article shall authorize the treasurer to establish or operate
automatic teller machines.
§12-3A-6. Receipting of electronic commerce purchases.
The treasurer may establish a system for acceptance of
credit card and other payment methods for electronic commerce
purchases from spending units. Each spending unit utilizing WEB
commerce, electronic commerce or other method that offers
products or services for sale shall utilize the treasurer's
system for acceptance of payments.
CHAPTER 31A. BANKS AND BANKING.
ARTICLE 8. HEARINGS; ADMINISTRATIVE PROCEDURES; JUDICIAL REVIEW;
UNLAWFUL ACTS; PENALTIES.
§31A-8-12b. Installation and operation of customer bank
communication terminals permitted
.
(a) Any banking institution as defined in section two,
article one of this chapter, individually or jointly with one or
more other banking institutions or other federally insured
financial institutions having their principal offices in this
state, or any combination thereof, may upon ten days prior
written notice filed with the commissioner, install, operate and
engage in banking business by means of one or more customer bank communication terminals. Any banking institution which installs
and operates a customer bank communication terminal:
(1) Shall make such customer bank communication terminal
available for use by other banking institutions; and
(2) May make such customer bank communication terminal
available for use by other federally insured financial
institutions, all in accordance with regulations promulgated by
the commissioner. Such customer bank communication terminals
shall not be considered to be branch banks or branch offices,
agencies or places of business or off-premises walk-in or drive- in banking facilities; nor shall the operation of such customer
bank communication terminals to communicate with and permit
financial transactions to be carried out through a nonexclusive
access interchange system be considered to make any banking
institution which is part of such a nonexclusive access
interchange system to have illegal branch banks or branch
offices, agencies or places of business or off-premises walk-in
or drive-in banking facilities.
(b) Notwithstanding the provisions of subdivision (1),
subsection (a) of this section, a customer bank communication
terminal located on the premises of the principal office or branch bank of a banking institution or on the premises of an
authorized off-premises facility need not be made available for
use by any other banking institution or its customers.
(c) For purposes of this section, "customer bank
communication terminal" means any electronic device or machine
owned, leased, or operated by a bank, together with all
associated equipment, structures and systems, including, without
limitation, point of sale terminals, through or by means of which
a customer and a banking institution may engage in any banking
transactions, whether transmitted to the banking institution
instantaneously or otherwise, including, without limitation, the
receipt of deposits of every kind, the receipt and dispensing of
cash, requests to withdraw money from an account or pursuant to
a previously authorized line of credit, receiving payments
payable at the bank or otherwise transmitting instructions to
receive, transfer or pay funds for a customer's benefit.
Personal computers, telephones and associated equipment which
enable a bank customer to conduct banking transactions at their
home or office through links to their bank's computer or
telephone network, do not constitute a "customer bank
communication terminal" under this section. All transactions initiated through a customer bank communication terminal shall be
subject to verification by the banking institution.
(d) No person, other than: (1) A banking institution
authorized to engage in the banking business in this state; or
(2) a credit union authorized to conduct business in this state,
may operate any automatic teller machine ("ATM") or automatic
loan machine ("ALM") located in this state:
Provided, That ATM
terminals of out-of-state banks not having branches in this state
shall be allowed to operate to the same extent as a West Virginia
bank if a national bank from that state not having branches in
West Virginia could do so through a federal preemption of state
law.
(e) For the purposes of this section, "point of sale
terminal" means a customer bank communication terminal used for
the primary purpose of either transferring funds to or from one
or more deposit accounts in a banking institution or segregating
funds in one or more deposit accounts in a banking institution
for future transfer, or both, in order to execute transactions
between a person and his
or her customers incident to sales,
including, without limitation, devices and machines which may be
used to implement and facilitate check guaranty and check authorization programs.
(f) Nothing in this section prevents point of sale
terminals and associated equipment from being owned, leased or
operated by nonbanking entities:
Provided, That such persons may
not engage in the business of banking by using point of sale
devices. The use of a point of sale terminal to enable a
customer or other person to withdraw and obtain cash of more than
fifty dollars in excess of the sales transaction purchase amount,
will be presumed to constitute engaging in the business of
banking
: Provided, however, That cash withdrawals through a point
of sale terminal in excess of fifty dollars shall not constitute
engaging in the business of banking if the sales transaction is
made with the use of a West Virginia check card, as provided in
article three-a, chapter twelve of this code, or with an
electronic benefits transfer or other card issued by state
spending units to transmit payments of food benefits, temporary
assistance to needy families, or other assistance, benefit or
entitlement programs mandated or offered by federal or state
government: Provided further, That any retailer, agency or person
providing cash withdrawals with a West Virginia check card or an
electronic benefits transfer card through a POS terminal is limited to charging a fee for the services in the amount of the
higher of one dollar or one percent of the amount of cash
withdrawn.
(g) Except for customer bank communication terminals
located on the premises of the principal office or a branch bank
of the banking institution or on the premises of an authorized
off-premises walk-in or drive-in banking facility, a customer
bank communication terminal shall be unattended or attended by
persons not employed by any banking institution utilizing the
terminal:
Provided, That:
(1) Employees of the banking institution may be present
at such terminal not located on the premises of an authorized
off-premises facility solely for the purposes of installing,
maintaining, repairing and servicing same; and
(2) A banking institution may provide an employee to
instruct and assist customers in the operation thereof:
Provided, That such employee shall not engage in any other
banking activity.
(h) The commissioner shall prescribe by regulation the
procedures and standards regarding the installation and operation
of customer bank communication terminals, including, without limitation, the procedure for the sharing thereof.