COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 149
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Originating in the Committee on Government Organization;
reported February 19, 2004.]
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A BILL to repeal §5A-2-2, §5A-2-3, §5A-2-4, §5A-2-5, §5A-2-6,
§5A-2-7, §5A-2-8, §5A-2-9, §5A-2-10, §5A-2-11, §5A-2-12,
§5A-2-13, §5A-2-14, §5A-2-14a, §5A-2-15, §5A-2-16, §5A-2-17,
§5A-2-18, §5A-2-19, §5A-2-20, §5A-2-21, §5A-2-22, §5A-2-23,
§5A-2-25, §5A-2-26, §5A-2-27, §5A-2-28, §5A-2-29, §5A-2-30 and
§5A-2-31 of the code of West Virginia, 1931, as amended; to
amend and reenact §5A-1-2, §5A-1-4 and §5A-1-5 of said code;
to amend and reenact §5A-2-1, §5A-2-24 and §5A-2-32 of said
code; and to amend said code by adding thereto a new chapter,
designated §11B-1-1, §11B-1-2, §11B-1-3, §11B-1-4, §11B-1-5,
§11B-1-6, §11B-1-7, §11B-2-1, §11B-2-2, §11B-2-3, §11B-2-4,
§11B-2-5, §11B-2-6, §11B-2-7, §11B-2-8, §11B-2-9, §11B-2-10,
§11B-2-11, §11B-2-12, §11B-2-13, §11B-2-14, §11B-2-15, §11B-2-16, §11B-2-17, §11B-2-18, §11B-2-19, §11B-2-20, §11B-2-21,
§11B-2-22, §11B-2-23, §11B-2-24, §11B-2-25, §11B-2-26, §11B-2-
27, §11B-2-28, §11B-2-29, §11B-2-30 and §11B-2-31, all
relating generally to department of tax and revenue and office
of secretary of tax and revenue and their powers, duties and
responsibilities; changing the name of department of tax and
revenue to department of revenue; changing name of office of
secretary of tax and revenue to office of secretary of
revenue; transferring budget section of finance division of
department of administration to department of revenue and
making secretary of revenue state budget director; increasing
membership of council of finance and administration by making
secretary of revenue an ex officio member; providing rules to
effectuate transfer of budget section and transition; moving
language pertaining to work of budget section and preparation
of budget to new chapter of the code; continuing misdemeanor
penalties for noncompliance by secretaries and spending
officers with requirements to provide certain budget and
budget-related information; identifying agencies, boards,
commissions, division and offices comprising department of
revenue; specifying powers and duties of secretary; requiring
periodic reports; authorizing delegations of authority;
providing rules for safeguarding confidential information;
providing right of appeal from interference with functioning of an agency; and making other technical or conforming changes
to implement or effectuate these various changes.
Be it enacted by the Legislature of West Virginia:
That §5A-2-2, §5A-2-3, §5A-2-4, §5A-2-5, §5A-2-6, §5A-2-7,
§5A-2-8, §5A-2-9, §5A-2-10, §5A-2-11, §5A-2-12, §5A-2-13, §5A-2-14,
§5A-2-14a, §5A-2-15, §5A-2-16, §5A-2-17, §5A-2-18, §5A-2-19, §5A-2-
20, §5A-2-21, §5A-2-22, §5A-2-23, §5A-2-24, §5A-2-25, §5A-2-26,
§5A-2-27, §5A-2-28, §5A-2-29, §5A-2-30 and §5A-2-31 of the code of
West Virginia, 1931, as amended, be repealed; that §5A-1-2, §5A-1-4
and §5A-1-5 of said code be amended and reenacted; that §5A-2-1,
§5A-2-24 and §5A-2-32 of said code be amended and reenacted; and
that said code be amended by adding thereto a new chapter,
designated §11B-1-1, §11B-1-2, §11B-1-3, §11B-1-4, §11B-1-5, §11B-
1-6, §11B-1-7, §11B-2-1, §11B-2-2, §11B-2-3, §11B-2-4, §11B-2-5,
§11B-2-6, §11B-2-7, §11B-2-8, §11B-2-9, §11B-2-10, §11B-2-11, §11B-
2-12, §11B-2-13, §11B-2-14, §11B-2-15, §11B-2-16, §11B-2-17, §11B-
2-18, §11B-2-19, §11B-2-20, §11B-2-21, §11B-2-22, §11B-2-23, §11B-
2-24, §11B-2-25, §11B-2-26, §11B-2-27, §11B-2-28, §11B-2-29, §11B-
2-30 and §11B-2-31, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 1. DEPARTMENT OF ADMINISTRATION.
§5A-1-2. Department of administration and office of secretary;
secretary; division of finance and administration
abolished; division directors.
(a) The department of administration and the office of
secretary of administration are hereby continued in the executive
branch of state government. The secretary shall be the chief
executive officer of the department and director of the budget and
shall be appointed by the governor, by and with the advice and
consent of the Senate, for a term not exceeding the term of the
governor. The office of the commissioner of finance and
administration and the division of finance and administration are
hereby abolished. All duties and responsibilities of the
commissioner of finance and administration are hereby vested in the
secretary of administration. All records, responsibilities,
obligations, assets and property, of whatever kind and character,
of the division of finance and administration are hereby
transferred to the department of administration. The balances of
all funds of the division of finance and administration are hereby
transferred to the department of administration. The department of
administration is hereby authorized to receive federal funds.
(b) The secretary shall serve at the will and pleasure of the
governor. The annual compensation of the secretary shall be as
specified in section three, article one, chapter five-f section
two-a, article seven, chapter six of this code.
(c) There shall be in the department of administration a
finance division, a general services division, an information
services and communications division, an insurance and retirement division, a personnel division and a purchasing division. The
insurance and retirement division shall be comprised of the public
employees retirement system and board of trustees, the public
employees insurance agency and public employees advisory board, the
teachers' retirement system and teachers' retirement board, and the
board of risk and insurance management. Each division shall be
headed by a director who may also head any and all sections within
that division and who shall be appointed by the secretary. In
addition to the divisions enumerated above, there shall also be in
the department of administration those agencies, boards,
commissions and councils specified in section one, article two,
chapter five-f of this code.
§5A-1-4. Council of finance and administration.
(a) The council of finance and administration is hereby
created and shall be composed of ten eleven members, four five of
whom shall serve ex officio and six of whom shall be appointed as
herein provided. The ex officio members shall be the secretary of
the department of administration, the secretary of revenue, the
attorney general or his designee, the state treasurer or his or her
designee and the state auditor or his or her designee; such
designees being authorized voting ones. From the membership of the
Legislature, the president of the Senate shall appoint three
senators as members of the council, not more than two of whom shall
be members of the same political party, and the speaker of the House of Delegates shall appoint three delegates as members of the
council, not more than two of whom shall be members of the same
political party. Members of the council appointed by the president
of the Senate and the speaker of the House of Delegates shall serve
at the will and pleasure of the officer making their appointment.
The secretary of administration shall serve as chairman of the
council. Meetings of the council shall be upon call of the chairman
or a majority of the members thereof. It shall be the duty of the
chairman to call no less than four meetings in each fiscal year,
one in each quarter, or more often as necessary, and all meetings
shall be open to the public. All meetings of the council shall be
held at the capitol building in a suitable committee room which
shall be made available by the Legislature for such purpose:
Provided, That the second quarterly meeting in each fiscal year
shall be held in November and shall be a joint meeting with the
joint committee on government and finance of the Legislature called
jointly by the president of the Senate, speaker of the House of
Delegates and secretary of administration.
(b) The council shall serve the department of administration
and the director of the budget in an advisory capacity for purposes
of reviewing the performance of the administrative and fiscal
procedures of the state, including the oversight of all federal
funds, and shall have the following duties:
(1) To advise with the secretary director of the budget in respect to matters of budgetary intent and efficiency, including
budget bill and budget document detail and format;
(2) To advise with the secretary and the director of the
budget concerning such studies of government and administration
concerning fiscal policy as it may consider appropriate;
(3) To advise with the secretary and the director of the
budget in the preparation of studies designed to provide long-term
capital planning and finance for state institutions and agencies;
and
(4) To advise with the secretary and the director of the
budget in respect to the application for, and receipt and
expenditure of, anticipated or unanticipated federal funds.
(c) The appointed, nonex officio members of the council shall
be entitled to receive such compensation and reimbursement for
expenses in connection with performance of their duties, during
interim periods, if not otherwise receiving the same for such
identical periods, as is authorized by the applicable sections of
article two-a, chapter four of the code in respect to performance
of duties either within the state or, if deemed necessary, out of
state. Such compensation and expenses shall be incurred and paid
only after approval by the joint committee on government and
finance.
§5A-1-5. Reports by secretary.
The secretary shall make an annual report to the governor concerning the conduct of the department and the administration of
the state finances as they pertain to programs administered by the
department of administration. The secretary shall also make such
other reports as the governor may require.
ARTICLE 2. FINANCE DIVISION.
§5A-2-1. Finance division created; director; sections; powers and
duties.
(a)The finance division of the department of administration is
hereby created continued except that the budget section is
transferred to and shall become a part of the department of revenue
on the effective date of this section as amended in the year two
thousand four. The finance division shall be under the supervision
and control of a director, who shall be appointed by the secretary.
There shall be in the finance division an accounting section a
budget section and a financial accounting and reporting section.
(b) The accounting section shall have the duties conferred
upon it by this article and by the secretary, including, but not
limited to, general financial accounting, payroll, accounts payable
and accounts receivable for the department of administration.
The budget section shall act as staff agency for the governor
in the exercise of his powers and duties under Section 51, Article
VI of the state constitution, and shall exercise and perform the
other powers and duties conferred upon it by this article.
(c) The financial accounting and reporting section shall establish and maintain the centralized accounting system required
by section twenty-four of this article and issue annual general
purpose financial statements in accordance with generally accepted
accounting principles and with this article.
§5A-2-24. Management accounting.
(a) It is the intent of this section to establish a
centralized accounting system for the offices of the auditor,
treasurer, board of investments, secretary of administration and
each spending unit of state government to provide more accurate and
timely financial data and increase public accountability.
(b) Notwithstanding any provision of this code to the
contrary, the secretary shall develop and implement a new
centralized accounting system for the planning, reporting and
control of state expenditures in accordance with generally accepted
accounting principles to be used by the auditor, treasurer, board
of investments, secretary and all spending units. The accounting
system shall provide for adequate internal controls, accounting
procedures, recording income collections, systems operation
procedures and manuals, and periodic and annual general purpose
financial statements, as well as provide for the daily exchange of
needed information among users.
(c) The financial statements shall be audited annually by
outside independent certified public accountants, who shall also
issue an annual report on federal funds in compliance with federal requirements.
(d) The secretary shall implement the centralized accounting
system no later than the thirty-first day of December, one thousand
nine hundred ninety-three, and, after approval of the system by the
governor, shall require its use by all spending units. The
auditor, treasurer, board of investments, secretary and every
spending unit shall maintain their computer systems and data files
in a standard format in conformity with the requirements of the
centralized accounting system. Any system changes must be approved
in advance of such change by the secretary. The auditor,
treasurer, board of investments, budget director and secretary of
administration shall provide on-line interactive access to the
daily records maintained by their offices.
§5A-2-32. Submission of requests, amendments, reports, etc., to
legislative auditor; misdemeanor penalty for
noncompliance.
(a) The provisions of sections three, eleven, twelve,
thirteen, nineteen, twenty-three and section twenty-five of this
article requiring the secretary or the spending officer of the
spending units, as the case may be, to supply copies of the
documents specified therein to the legislative auditor, shall be
strictly adhered to by all such persons.
(b) Any failure by any person to comply with the provisions of
subsection (a) of this section shall be a misdemeanor and, upon conviction thereof, the person shall be fined the sum of one
thousand dollars. This penalty shall be in addition to other
penalties provided elsewhere in this article and other remedies
provided by law.
CHAPTER 11B. DEPARTMENT OF REVENUE.
ARTICLE 1. DEPARTMENT OF REVENUE.
§11B-1-1. Department of tax and revenue renamed department of
revenue; office of secretary of tax and revenue
renamed office of secretary of revenue.
(a) The department of tax and revenue and the office of
secretary of tax and revenue are hereby renamed, respectively, the
department of revenue and the office of secretary of revenue and
continued in the executive branch of state government. Wherever
this code the words "office of secretary of tax and revenue" or
"secretary of tax and revenue" are used, such words shall now mean
the office of secretary of revenue or the secretary of revenue.
(b) The secretary of revenue shall be the chief executive
officer of the department and director of the budget. The
secretary shall be appointed by the governor, by and with the
advice and consent of the Senate, for a term not exceeding the term
of the governor.
(c) The department of revenue is hereby authorized to receive
federal funds.
(d) The secretary shall serve at the will and pleasure of the governor. The annual compensation of the secretary shall be as
specified in section two-a, article seven, chapter six of this
code.
§11B-1-2. Agencies, boards, commissions, divisions and offices
comprising the department of finance and revenue.
(a) There shall be in the department of revenue the following
agencies, boards, commissions, divisions and offices, including all
of the allied, advisory, affiliated or related entities which are
incorporated in and shall be administered as part of the department
of revenue:
(1) The alcohol beverage control administration provided for
in article sixteen, chapter eleven of this code and article one,
chapter sixty of this code;
(2) The division of banking provided for in article two,
chapter thirty-one-a of this code;
(3) The board of banking and financial institutions provided
for in article three, chapter thirty-one-a of this code;
(4) The state budget office, heretofore known as the budget
section of the finance division, department of administration,
previously provided for in article two, chapter five-a of this
code, and now provided for in article two of this chapter;
(5) The agency of insurance commissioner provided for in
article two, chapter thirty-three of this code;
(6) The lending and credit rate board provided for in chapter forty-seven-a of this code;
(7) The lottery commission and the position of lottery
director provided for in article twenty-two, chapter twenty-nine of
this code;
(8) The municipal bond commission provided for in article
three, chapter thirteen of this code;
(9) The office of tax appeals provided for in article ten-a,
chapter eleven of this code;
(10) The state athletic commission provided for in article
five-a, chapter twenty-nine of this code;
(11) The tax division provided for in article one, chapter
eleven of this code; and
(12) The West Virginia racing commission provided for in
article twenty-three, chapter nineteen of this code.
(b) The department shall also include any other agency, board,
commission, division, office or unit subsequently incorporated in
the department by the Legislature.
§11B-1-3. Powers and duties of secretary, administrators, division
heads and employees.
(a) The secretary shall have control and supervision of the
department of revenue and shall be responsible for the work of each
of its employees.
(b) The secretary shall have the power and authority specified
in this article and article two, chapter five-f of this code, and as specified elsewhere in this code, whether heretofore or
hereinafter enacted by the Legislature and whether the code
provision refers to the secretary of revenue or to the secretary of
tax and revenue.
(c) The secretary has authority to assess agencies, boards,
commissions, divisions and offices in the department of revenue for
the payment of expenses of the office of the secretary.
(d) The secretary shall have plenary power and authority
within and for the department to employ such professional staff,
including, but not limited to, certified public accountants,
economists and attorneys, assistants and other employees as may be
necessary for the efficient operation of the department.
(e) The secretary and administrators, division heads and other
employees of the department shall perform the duties specified in
the code for their respective offices or positions and shall also
perform such other duties as the governor may prescribe.
§11B-1-4. Reports by secretary.
The secretary shall make an annual report to the governor
concerning the conduct of the department and the administration of
the budget. The secretary shall also make such other reports as
the governor may require.
§11B-1-5. Delegation of powers and duties by secretary.
The secretary may delegate powers and duties vested in the
secretary to his or her assistants and employees, but the secretary shall be responsible for all official acts of the department.
§11B-1-6. Confidentiality of information.
(a)
Information provided to secretary under expectation of
confidentiality. -- Information that would be confidential under
the laws of this state when provided to a division, agency, board,
commission or office within the department of revenue shall be
confidential when that information is provided to the secretary of
the department of revenue, or to an employee in the office of the
secretary. Thereafter, the confidential information may be
disclosed only: (1) To the applicable agency, board, commission,
or division of the department to which the information relates; or
(2) in the manner authorized by provisions of this code applicable
to that agency, board, commission or division. This
confidentiality rule is a specific exemption from disclosure under
article one, chapter twenty-nine-b of this code;
(b)
Interdepartmental communication of confidential
information. -- Notwithstanding any provision of this code to the
contrary, information that by statute is confidential in the
possession of any division, agency, board, commission or office of
the department of revenue may be disclosed to the secretary, or an
employee in the office of the secretary, who must safeguard the
information and may not further disclose the information except
under the same conditions, restrictions and limitations applicable
to the administrator of the agency, board, commission, division or office of the department in whose hands the information is
confidential:
Provided, That nothing contained in this section
shall be construed to require the disclosure to the secretary or to
an employee in the office of the secretary of individually
identifiable health care or other information that, under federal
law, may not be disclosed by the administrator without subjecting
the administrator or the agency, board, commission, division or
office to sanctions or other penalties by the United States or any
agency thereof. This confidentiality rule is a specific exemption
from disclosure under article one, chapter twenty-nine-b of this
code.
§11B-1-7. Right of appeal from interference with functioning of
agency.
Upon occasion of a showing that the application of the
authority vested under the provisions of this article may interfere
with the successful functioning of any department, institution or
agency of the government, that department, institution or agency
may have the right of appeal to the governor for review of the case
and the decision or conclusion of the governor shall govern in such
cases.
ARTICLE 2. STATE BUDGET OFFICE.
§11B-2-1. Budget office.
The budget section of the department of administration is
hereby transferred to the department of revenue and continued as the budget office. The budget office shall act as staff agency for
the governor in the exercise of his powers and duties under Section
51, Article VI of the state constitution, and shall exercise and
perform the other powers and duties of the budget office set forth
in this article or previously conferred upon the budget section of
the finance division, department of administration, prior to the
effective date of this section in calendar year two thousand four,
and set forth whether in article two, chapter five-a of this code,
prior to the effective date of this section in calendar year two
thousand four, this article, or elsewhere in this code.
§11B-2-2. General powers and duties of secretary as director of
budget.
The secretary of revenue, under the immediate supervision of
the governor, shall have the power and duty to:
(1) Exercise general supervision of, and make rules and
regulations for, the government of this division;
(2) Administer the budget in accordance with this article;
(3) Serve the governor in the consideration of requests for
appropriations and the preparation of the budget document;
(4) Make such investigations and submit such reports as the
governor may require;
(5) Make a continuous study of state expenditures and
eligibility for federal matching dollars and make such
recommendations to the governor for the more economical use of state funds as he or she shall find practicable;
(6) Render assistance to spending officers with respect to the
fiscal affairs of spending units; and
(7) Exercise such other powers as are vested in the secretary
by this article, or which may be appropriate to the discharge of
the secretary's duties under this article.
§11B-2-3. Requests for appropriations; copies to legislative
auditor.
(a) The spending officer of each spending unit, other than the
legislative and the judicial branches of state government, shall,
on or before the first day of September of each year, submit to the
secretary a request for appropriations for the fiscal year next
ensuing. On or before the same date, the spending officer shall
also transmit two copies of such request to the legislative auditor
for the use of the finance committees of the Legislature.
(b) If the spending officer of any spending unit fails to
transmit to the legislative auditor two copies of the request for
appropriations within the time specified in this section, the
legislative auditor or the state budget office shall notify the
secretary, auditor and treasurer of the failure. Upon
notification, no funds appropriated to that spending unit shall be
encumbered or expended until the spending officer thereof has
transmitted two copies of the request for appropriation to the
legislative auditor.
(c) If a spending officer submits to the secretary an amendment to the request for appropriations, two copies of the
amendment shall forthwith be transmitted to the legislative
auditor.
(d) Notwithstanding any provision in this section to the
contrary, the state superintendent of schools shall, on or before
the fifteenth day of December of each year, submit to the secretary
a request for appropriations for the fiscal year next ensuing for
state aid to schools and submit two copies of the request to the
legislative auditor for the use of the finance committees of the
Legislature. The request for appropriation shall be accompanied
with copies of certified enrollment and employee lists from all
county superintendents for the current school year. If certified
enrollment and employee lists are not available to the state
superintendent from any of the county school boards, the state
superintendent shall notify those school boards and no funds shall
be expended for salary or compensation to their county
superintendent until the certified lists of enrollment and
employees are submitted.
§11B-2-4. Contents of requests.
A request for an appropriation for a spending unit shall
specify and itemize in written form:
(1) A statement showing the amount and kinds of revenue and
receipts collected for use of the spending agency during the next
preceding fiscal year and anticipated collections for the fiscal
year next ensuing;
(2) A statement by purposes and objects of the amount of appropriations requested for the spending unit without deducting
the amount of anticipated collections of special revenue, federal
funds or other receipts;
(3) A statement showing the actual expenditures of the
spending unit for the preceding year and estimated expenditures for
the current fiscal year itemized by purposes and objects, including
those from regular and supplementary appropriations, federal funds,
private contributions, transfers, allotments from an emergency or
contingency fund and any other expenditures made by or for the
spending unit;
(4) A statement showing the number, classification and
compensation of persons employed by the spending unit
distinguishing between regular, special and casual employees during
the preceding fiscal year and during the current fiscal year. The
statement shall show the personnel requirements in similar form for
the ensuing fiscal year for which appropriations are requested;
(5) A statement showing in detail the purposes for which
increased amounts of appropriations, if any, are requested, and
giving a justification statement for the expenditure of the
increased amount. A construction or other improvement request
shall show in detail the kind and scope of construction or
improvement requested;
(6) A statement of money claims against the state arising out
of the activities of the spending unit; and
(7) Such other information as the secretary may request.
§11B-2-5. Form of requests.
The secretary shall specify the form and detail of itemization
of requests for appropriations and statements to be submitted by a
spending unit:
Provided, That such request for appropriations must
include at a minimum the information required by section four of
this article. The secretary shall furnish blank forms for this
purpose.
§11B-2-6. Information concerning state finances.
The secretary shall ascertain for the preceding year and as
estimated for the current fiscal year:
(1) The condition of each of the funds of the state;
(2) A statement of all revenue collections both general and
special; and
(3) Any other information relating to the finances of the
state as the governor may request.
§11B-2-7. Appropriations for judiciary.
The governor shall transmit to the secretary the
appropriations required by law for the judiciary for the fiscal
year next ensuing and which have been certified to the governor by
the auditor. The auditor shall certify such appropriations to the
governor in accordance with section 51, article VI of the state
constitution, on or before the first day of September of each year.
§11B-2-8. Examination of requests for appropriations.
(a) The secretary shall examine the requests of a spending
unit with respect to requested appropriations, itemization,
sufficiency of justification statements, and accuracy and
completeness of all other information which the spending officer is required to submit.
(b) If the secretary finds a request, report, or statement of
a spending unit inaccurate, incomplete or inadequate, he shall
consult with the spending officer of the unit and require the
submission of the requests in proper form and content. The
secretary shall assist spending officers in the preparation of
their requests.
§11B-2-9. Appropriation requests by other than spending units.
A person or organization, other than a spending officer, who
desires to request a general appropriation in the state budget,
shall submit his or her request to the secretary on or before the
first day of September of each year. The request shall be in the
form prescribed by the secretary and shall be accompanied by a
justification statement.
§11B-2-10. Powers of secretary in administration of expenditures.
(a) The secretary shall supervise and control the expenditure
of appropriations made by the Legislature excluding those made to
the Legislature and those made to the judicial branch of the state
government.
(b) The expenditure of an appropriation made by the
Legislature, except made for the Legislature itself and the
judicial branch of state government, shall be conditioned upon
compliance by the spending unit with the provisions of this
article.
(c) An appropriation made by the Legislature, except made for
the Legislature itself and the judicial branch of state government, shall be expended only in accordance with this article.
§11B-2-11. Estimates of revenue; reports on revenue collections;
withholding department funds on noncompliance.
(a) Prior to the beginning of each fiscal year the secretary
shall estimate the revenue to be collected month by month by each
classification of tax for that fiscal year as it relates to the
official estimate of revenue for each tax for that fiscal year and
the secretary shall certify this estimate to the governor and the
legislative auditor and the West Virginia investment management
board by the first day of July for that fiscal year.
(1) The secretary shall ascertain the collection of the
revenue of the state and shall determine for each month of the
fiscal year the proportion which the amount actually collected
during a month bears to the collection estimated by him or her for
that month. The secretary shall certify to the governor, the
legislative auditor and the investment management board, as soon as
possible after the close of each month, and not later than the
fifteenth day of each month, and at such other times as the
governor, the legislative auditor or the investment management
board may request, the condition of the state revenues and of the
several funds of the state and the proportion which the amount
actually collected during the preceding month bears to the
collection estimated by him or her for that month. The secretary
shall include in this certification the same information previously
certified for prior months in each fiscal year. For the purposes
of this section, the secretary shall have the authority to require all necessary estimates and reports from any spending unit of the
state government.
(2) If the secretary fails to certify to the governor, the
legislative auditor and the investment management board the
information required by this subsection within the time specified
herein, the legislative auditor shall notify the auditor and
treasurer of the failure, and thereafter no funds appropriated to
the department of revenue may be expended until the secretary has
certified the information required by this subsection.
(b) Prior to the first day of July of each fiscal year, the
secretary shall estimate daily revenue flows for the general
revenue fund for the next fiscal year as it relates to the official
estimate of revenue. Subsequent to the end of each fiscal year,
the secretary shall compare the projected daily revenue flows with
the actual daily revenue flows from the previous year. The
secretary may for any month or months, at his or her discretion,
revise the annual projections of the daily revenue flows. The
secretary shall certify to the governor, the legislative auditor
and the investment management board, as soon as possible after the
close of each month, and not later than the fifteenth day of each
month, and at such other times as the governor, the legislative
auditor or the investment management board may request, the
condition of the general revenue fund and the comparison of the
projected daily revenue flows with the actual daily revenue flows.
If the secretary fails to certify to the governor, the legislative
auditor and the investment management board the information required by this subsection within the time specified herein, the
legislative auditor shall notify the auditor and treasurer of the
failure, and thereafter no funds appropriated to the department of
revenue may be expended until the secretary has certified the
information required by this subsection.
§11B-2-12. Submission of expenditure schedules; contents;
submission of information on unpaid obligations;
copies to legislative auditor.
(a) Prior to the beginning of each fiscal year, the spending
officer of a spending unit shall submit to the secretary a detailed
expenditure schedule for the ensuing fiscal year. The schedule
shall be submitted in such form and at such time as the secretary
may require. The schedule shall show:
(1) A proposed monthly rate of expenditure for amounts
appropriated for personal services;
(2) Each and every position budgeted under personal services
for the next ensuing fiscal year, with the monthly salary or
compensation of each such position;
(3) A proposed quarterly rate of expenditure for amounts
appropriated for employee benefits, current expenses, equipment and
repairs and alterations classified by a uniform system of
accounting as called for in section twenty-five of this article for
each item of every appropriation;
(4) A proposed yearly plan of expenditure for amounts
appropriated for buildings and lands; and
(5) A proposed quarterly plan of receipts itemized by type of revenue.
(b) The secretary may accept a differently itemized
expenditure schedule from a spending unit to which the above
itemizations are not applicable.
(c) The secretary shall consult with and assist spending
officers in the preparation of expenditure schedules.
(d) Within fifteen days after the end of each month of the
fiscal year, the head of every spending unit shall certify to the
legislative auditor the status of obligations and payments of the
spending unit for amounts of employee benefits, including, but not
limited to, obligations and payments for social security
withholding and employer matching, public employees insurance
premiums and public employees retirement and teachers retirement
systems.
(e) In the event the legislative auditor determines from
certified reports or from other sources that any spending unit is
not making all payments and transfers for employee benefits from
funds appropriated for that purpose, the legislative auditor shall
notify the secretary of administration, auditor and treasurer of
such determination and thereafter no funds appropriated to such
spending unit shall be encumbered or expended for the salary or
compensation to the head of the spending unit until the legislative
auditor shall determine that such payments or transfers are being
made on a timely basis.
(f) When a spending officer submits an expenditure schedule to
the secretary as required by this section, the spending officer shall at the same time transmit a copy thereof to the legislative
auditor and the joint committee on government and finance or its
designee. If a spending officer of a spending unit fails to
transmit such copy to the legislative auditor on or before the
beginning of the fiscal year, the legislative auditor shall notify
the secretary, auditor and treasurer of such failure, and
thereafter no funds appropriated to such spending unit shall be
encumbered or expended until the spending officer thereof has
transmitted such copy to the legislative auditor.
§11B-2-13. Examination and approval of expenditure schedules;
amendments; copies to legislative auditor.
(a) The secretary shall examine the expenditure schedule of
each spending unit, and if it conforms to the appropriations made
by the Legislature, the requirements of this article, and is in
accordance with sound fiscal policy, the secretary shall approve
the schedule. In addition, the secretary shall give special
consideration in the approval of expenditure schedules to accounts
in which the appropriations consist predominantly of personal
services funds so that the quarterly allotments of funds to the
various spending units pursuant to section sixteen of this article
are sufficient to pay such personnel costs in the quarter in which
they are due.
(b) The expenditure of the appropriations made to a spending
unit shall be only in accordance with the approved expenditure
schedule unless the schedule is amended with the consent of the
secretary, or unless appropriations are reduced in accordance with the provisions of sections twenty-one to twenty-four, inclusive, of
this article. The spending officer of a spending unit shall
transmit to the legislative auditor a copy of each and every
requested amendment to such schedule at the same time that such
requested amendment is submitted to the secretary. The secretary
shall send to the legislative auditor copies of any schedule
amended with the secretary's approval.
§11B-2-14. Reserves for emergencies.
The secretary, with the approval of the governor, may require
that an expenditure schedule provide for a reserve for emergencies
out of the total amount appropriated to the spending unit. The
amount of the reserve shall be determined by the secretary in
consultation with the spending officer.
§11B-2-15. Reserves for public employees insurance program.
(a) There is hereby continued a special revenue account in the
state treasury, designated the "Public Employees Insurance Reserve
Fund", which is an interest-bearing account and may be invested in
accordance with the provisions of article six, chapter twelve of
this code, with the interest income a proper credit to the fund.
(b) The fund shall consist of moneys appropriated by the
Legislature and moneys transferred annually pursuant to the
provisions of subsection (c) of this section. These moneys shall
be held in reserve and appropriated by the Legislature only for the
support of the programs provided by the public employees insurance
agency:
Provided, That in only the fiscal year beginning the first
day of July, two thousand two, and in each of the next two fiscal years thereafter, and ending on the thirtieth day of June, two
thousand five, the moneys held in the fund may be appropriated to
the bureau of medical services of the department of health and
human resources.
(c) Annually each state agency, except for the higher
education central office created in article four, chapter
eighteen-b of this code; the higher education governing boards as
defined in articles two and three of said chapter; and the state
institutions of higher education as defined in section two, article
one of said chapter shall transfer one percent of its annualized
expenditures from state funds, excluding federal funds based on
filled full-time equivalents as determined by the state budget
office as of the first day of April for that fiscal year, to the
public employees insurance reserve fund. The secretary may exempt
that transfer only upon a showing by the requesting agency that the
continued operation of that agency is dependent upon receipt of the
exemption.
(d) Annually the secretary shall provide a report to the
governor and the Legislature on the amount of reserves established
pursuant to the provisions of this section, the number of
exemptions granted and the agencies receiving those exemptions.
§11B-2-16. Limitation on expenditures.
The expenditures of a spending unit during a quarter of the
fiscal year shall not exceed the amount of the approved allotment,
unless the governor approves the expenditure of a larger amount.
Any amounts remaining unexpended at the close of the quarter shall be available for reallocation and expenditure during any succeeding
quarter of the same fiscal year.
§11B-2-17. Transfers between items of appropriation of executive,
legislative and judicial branches.
Notwithstanding any other provision of law to the contrary,
there shall be no transfer of amounts between items of
appropriations nor shall moneys appropriated for any particular
purpose be expended for any other purpose by any spending unit of
the executive, legislative or judicial branch except as hereinafter
provided:
(1) Any transfer of amounts between items of appropriations
for the executive branch of state government shall be made only as
authorized by the Legislature.
(2) Any transfer of amounts between items of appropriations
for the legislative branch of state government shall be made only
pursuant to the joint rules adopted by such body and any amendments
thereto, as certified to the state auditor, the state treasurer and
the legislative auditor.
(3) Any transfer of amounts between items of appropriations
for the judicial branch of state government shall be made only
pursuant to rules adopted by the supreme court of appeals and any
amendments thereto, as certified to the state auditor, the state
treasurer and the legislative auditor.
§11B-2-18. Expenditure of excess in collections; notices to
auditor and treasurer.
(a) If the amount actually collected by a spending unit exceeds the amount which it is authorized to expend from
collections, the excess in collections shall be set aside in the
fund for the spending unit. Expenditures from this portion of the
fund shall be made only in accordance with the following procedure:
(1) The spending officer shall submit to the secretary:
(A) A plan of expenditure showing the purposes for which the
excess is to be expended; and
(B) A justification statement showing the reasons why the
expenditure is necessary and desirable.
(2) The secretary shall submit the request to the governor
with his recommendation.
(3) If the governor approves the plan of expenditure and
justification statement, and is satisfied that the expenditure is
required to defray the additional cost of the service or activity
of the spending unit, and that the expenditure is in accordance
with sound fiscal policy, he or she may authorize the use of the
excess during the current fiscal year. Notices of such
authorization shall be sent to the state auditor, the state
treasurer and the legislative auditor.
(b) An expenditure from the excess without the authorization
of the governor, or other than in accordance with this section,
shall be an unlawful use of public funds.
§11B-2-19. Reports by spending units; copies to legislative
auditor.
A spending unit shall submit to the secretary reports with
respect to the work and expenditures of the unit as the secretary may request for the purposes of this article. Upon receipt thereof,
the secretary shall immediately send a copy of each report to the
legislative auditor.
§11B-2-20. Reduction of appropriations; powers of governor;
revenue shortfall reserve fund and permissible
expenditures therefrom.
(a) Notwithstanding any provision of this section, the
governor may reduce appropriations according to any of the methods
set forth in sections twenty-one and twenty-two of this article.
The governor may, in lieu of imposing a reduction in
appropriations, request an appropriation by the Legislature from
the revenue shortfall reserve fund established in this section.
(b) A revenue shortfall reserve fund is hereby continued
within the state treasury. The revenue shortfall reserve fund
shall be funded as set forth in this subsection from surplus
revenues, if any, in the state fund, general revenue, as the
surplus revenues may accrue from time to time. Within sixty days
of the end of each fiscal year, the secretary shall cause to be
deposited into the revenue shortfall reserve fund the first fifty
percent of all surplus revenues, if any, determined to have accrued
during the fiscal year just ended. The revenue shortfall reserve
fund shall be funded continuously and on a revolving basis in
accordance with this subsection up to an aggregate amount not to
exceed five percent of the total appropriations from the state
fund, general revenue, for the fiscal year just ended. If at the
end of any fiscal year the revenue shortfall reserve fund is funded at an amount equal to or exceeding five percent of the state's
general revenue fund budget for the fiscal year just ended, then
there shall be no further obligation of the secretary under the
provisions of this section to apply any surplus revenues as set
forth in this subsection until such time as the revenue shortfall
reserve fund balance is less than five percent of the total
appropriations from the state fund, general revenue.
(c) Not earlier than the first day of November of each
calendar year, if the state's fiscal circumstances are such as to
otherwise trigger the authority of the governor to reduce
appropriations under this section or section twenty-one or section
twenty-two of this article, then in that event the governor may
notify the presiding officers of both houses of the Legislature in
writing of his or her intention to convene the Legislature pursuant
to section 19, article VI of the West Virginia constitution for the
purpose of requesting the introduction of a supplementary
appropriation bill or to request a supplementary appropriation bill
at the next preceding regular session of the Legislature to draw
money from the surplus revenue shortfall reserve fund to meet any
anticipated revenue shortfall. If the Legislature fails to enact
a supplementary appropriation from the revenue shortfall reserve
fund during any special legislative session called for the purposes
set forth in this section or during the next preceding regular
session of the Legislature, then the governor may proceed with a
reduction of appropriations pursuant to sections twenty-one and
twenty-two of this article. Should any amount drawn from the revenue shortfall reserve fund pursuant to an appropriation made by
the Legislature prove insufficient to address any anticipated
shortfall, then the governor may also proceed with a reduction of
appropriations pursuant to sections twenty-one and twenty-two of
this article.
(d) Upon the creation of the fund, the Legislature is
authorized and may make an appropriation from the revenue shortfall
reserve fund for revenue shortfalls, for emergency revenue needs
caused by acts of God or natural disasters or for other fiscal
needs as determined solely by the Legislature.
(e) Prior to the thirty-first day of October, in any fiscal
year in which revenues are inadequate to make timely payments of
the state's obligations, the governor may by executive order, after
first notifying the presiding officers of both houses of the
Legislature in writing, borrow funds from the revenue shortfall
reserve fund. The amount of funds borrowed under this subsection
shall not exceed one and one-half percent of the general revenue
estimate for the fiscal year in which the funds are to be borrowed,
or the amount the governor determines is necessary to make timely
payment of the state's obligations, whichever is less. Any funds
borrowed pursuant to this subsection shall be repaid, without
interest, and redeposited to the credit of the revenue shortfall
reserve fund within ninety days of their withdrawal.
§11B-2-21. Reduction of appropriations -- Reduction of
appropriations from general revenue.
If the governor determines that the amounts, or parts thereof, appropriated from the general revenue cannot be expended without
creating an overdraft or deficit in the general fund, he may
instruct the secretary to reduce all appropriations out of general
revenue in such a degree as may be necessary to prevent an
overdraft or a deficit in the general fund.
§11B-2-22. Reduction of appropriations -- Reduction of
appropriations from other funds.
(a) The governor in the manner set forth in section twenty-one
may reduce appropriations from:
(1) Funds supported by designated taxes or fees; and
(2) Fees or other collections set aside for the support of
designated activities or services.
(b) Each fund and each fee or collection account shall be
treated separately.
§11B-2-23. Approval of secretary of requests for changes and
receipt and expenditure of federal funds by state
agencies; copies or sufficient summary information
to be furnished to secretary; and consolidated
report of federal funds.
(a) Every agency of the state government when making requests
or preparing budgets to be submitted to the federal government for
funds, equipment, material or services, the grant or allocation of
which is conditioned upon the use of state matching funds, shall
have the request or budget approved in writing by the secretary
before submitting it to the proper federal authority. When the
federal authority has approved the request or budget, the agency of the state government shall resubmit it to the secretary for
recording before any allotment or encumbrance of the federal funds
can be made. Whenever any agency of the state government receives
from any agency of the federal government a grant or allocation of
funds which do not require state matching, the state agency shall
report to the secretary the amount of the federal funds granted or
allocated.
(b) Unless contrary to federal law, any agency of state
government, when making requests or preparing budgets to be
submitted to the federal government for funds for personal
services, shall include in the request or budget the amount of
funds necessary to pay for the costs of any fringe benefits related
to the personal service. For the purposes of this section, "fringe
benefits" means any employment benefit granted by the state which
involves state funds, including, but not limited to, contributions
to insurance, retirement and social security and which does not
affect the basic rate of pay of an employee.
(c) In addition to the other requirements of this section, the
secretary shall, as soon as possible after the end of each fiscal
year but no later than the thirty-first day of December of each
year, submit to the governor a consolidated report which shall
contain a detailed itemization of all federal funds received by the
state during the preceding and current fiscal years, as well as
those scheduled or anticipated to be received during the next
ensuing fiscal year. The itemization shall show:
(1) Each spending unit which has received or is scheduled or expected to receive federal funds in either of the fiscal years;
(2) the amount of each separate grant or distribution received
or to be received; and
(3) a brief description of the purpose of every grant or other
distribution, with the name of the federal agency, bureau or
department making the grant or distribution:
Provided, That it is
not necessary to include in the report an itemization of federal
revenue sharing funds deposited in and appropriated from the
revenue sharing trust fund, or federal funds received for the
benefit of the division of highways of the department of
transportation.
(d) The secretary may obtain from the spending units any and
all information necessary to prepare a report.
(e) Notwithstanding the other provisions of this section and
in supplementation of the provisions of this section, the
Legislature hereby determines that the department of revenue and
its secretary need to be the single and central agency for receipt
of information and documents in respect of applications for, and
changes, receipt and expenditure of, federal funds by state
agencies. Every agency of state government, when making
application for federal funds in the nature of a grant, allocation
or otherwise; when amending the applications or requests; when in
receipt of federal funds; or when undertaking any expenditure of
federal funds, in all respective instances, shall provide to the
secretary of revenue document copies or sufficient summary
information in respect of the federal funds to enable the secretary to provide approval in writing for any activity in respect to the
federal funds.
§11B-2-24. Expenditure of appropriations -- Generally.
The expenditure of an appropriation made by the Legislature
shall be conditioned upon compliance by the spending unit with the
following provisions of this article.
§11B-2-25. Expenditure of appropriations -- Other than for
purchases of commodities.
A requisition for expenditure, other than an order for the
purchase of commodities, shall be submitted as follows:
(1) The spending officer shall prepare and submit to the
director a requisition showing the amount, purpose, and
appropriation from which the expenditure is requested;
(2) The director of the budget shall examine the requisition
and determine whether the amount is within the quarterly allotment,
is in accordance with the approved expenditure schedule, and
otherwise conforms to the provisions of this article;
(3) If the director approves the requisition, he/she shall
encumber the proper account in the amount of the requisition and
shall transmit the requisition to the auditor for disbursement in
accordance with law; and
(4) If the director disapproves the requisition, he or she
shall return it to the spending unit with a statement of his
reasons.
§11B-2-26. Expenditure of appropriations -- Purchases of
commodities.
If a requisition is a request for a purchase of commodities,
the spending unit shall transmit the requisition to the state
budget office for the purpose of ascertaining whether it conforms
to the expenditure schedule. If it does not so conform, the
requisition shall be returned by the state budget office to the
spending unit. If it conforms, the state budget office shall
transmit the requisition to the purchasing division of the
department of administration for purchase in accordance with
article three, chapter five-a of this code. When a copy of the
purchase order issued pursuant thereto is received from the
purchasing division by the director in accordance with the
provisions of section fourteen, article three, chapter five-a of
this code, the director shall ascertain whether the unencumbered
balance in the appropriation concerned, in excess of all unpaid
obligations, is sufficient to defray the cost of such order, and,
if so, shall encumber the proper account and so certify the fact to
the purchasing division, and, if not, shall notify the purchasing
division which, upon receipt of such notification, shall return the
requisition to the spending unit.
§11B-2-27. Expenditure of appropriations -- Payment of personal
services.
A requisition for the payment of personal services shall upon
receipt by the director of the budget be checked against the
personnel schedule of the spending unit making the requisition.
The director shall approve a requisition for personal services only
if the amounts requested are in accordance with the personnel schedule of the spending unit.
§11B-2-28. Expenditure of appropriations -- Legislative and
judicial expenditures.
(a) The provisions of sections twenty-six and twenty-seven of
this article shall not apply to the expenditure of amounts
appropriated for the use of the Legislature or for the judiciary.
(b) In the case of appropriations made for the Legislature,
the clerk of the House of Delegates, or the clerk of the Senate, as
the case may be, shall present his requisition directly to the
auditor.
(c) In the case of appropriations made for the judiciary, the
clerk of the court shall present his requisition or claim directly
to the auditor.
(d) In the case of appropriations made for criminal charges,
the clerk or the proper officer shall present his claim directly to
the auditor.
§11B-2-29. Appropriations for officers, commissions, boards or
institutions without office at capitol.
All appropriations now or hereafter made for officers,
commissions, boards or institutions, public or private, other than
state institutions of higher education, state charitable
institutions, state hospitals and sanitariums and state penal and
correctional institutions, not having an office at the state
capitol, shall, unless otherwise provided by law, be expended on
requisitions of such officer, commission, board or institution,
after approval by the secretary of the department of revenue.
§11B-2-30. Submission of requests, amendments, reports, etc., to
legislative auditor; misdemeanor penalty for
noncompliance.
(a) The provisions of sections three, eleven, twelve,
thirteen, twenty and twenty-four of this article requiring the
secretary or the spending officer of the spending units, as the
case may be, to supply copies of the documents specified therein to
the legislative auditor, shall be strictly adhered to by all such
persons.
(b) Any failure by any person to comply with the provisions of
subsection (a) of this section shall be a misdemeanor and, upon
conviction thereof, the person shall be fined the sum of one
thousand dollars. This penalty shall be in addition to other
penalties provided elsewhere in this article and other remedies
provided by law.
§11B-2-31. Effectuation of transfer of budget section and
transition.
To effectuate the transfer of the budget section of the
finance division, department of administration to the department of
revenue upon the effective date of this section in the year two
thousand four:
(1) All employees, records, responsibilities, obligations,
assets and property, of whatever kind and character, of the budget
section, finance division of the department of administration are
hereby transferred to the state budget office of the department of
revenue beginning the effective date of this section in the year two thousand four.
(2) The unencumbered balances of all funds allocated to the
budget section of the division of finance for fiscal years ending
the thirtieth day of June, two thousand four, and the fiscal year
ending the thirtieth day of June, two thousand five, are hereby
transferred to the state budget office of the department of revenue
on the effective date of this section in the year two thousand
four.
(3) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted or allowed to
become effective by the governor, any state department or agency or
official thereof, or by a court of competent jurisdiction, in the
performance of functions which have been transferred to the
secretary of the department of revenue or to the department of
revenue, and were in effect on the date the transfer occurred
continue in effect, for the benefit of the department, according to
their terms until modified, terminated, superseded, set aside, or
revoked in accordance with the law by the governor, the secretary
of revenue, or other authorized official, a court of competent
jurisdiction, or by operation of law.
(4) Any proceedings, including but not limited to notices of
proposed rulemaking, in which the budget section, finance division
of the department of administration was an initiating or responding
party are not affected by the transfer of the budget section to the
department of revenue. Orders issued in any proceedings continue in effect until modified, terminated, superseded, or revoked by the
governor, the secretary of revenue, by a court of competent
jurisdiction, or by operation of law. Nothing in this subdivision
prohibits the discontinuance or modification of any proceeding
under the same terms and conditions and to the same extent that a
proceeding could have been discontinued or modified if the division
had not been transferred to the department of revenue. Transfer of
the budget section of the finance division does not affect suits
commenced prior to the effective date of the transfer and all such
suits and proceedings shall be had, appeals taken and judgments
rendered in the same manner and with like effect as if the transfer
had not occurred, except that the secretary of the department of
revenue or other officer may, in an appropriate case, be
substituted or added as a party.
NOTE: The purpose of this bill is to: (1) Change the name of the
department of tax and revenue to the department of revenue; (2) change
the name of the office of secretary of tax and revenue to the office of
secretary of revenue; (3) clarify the powers, duties and responsibilities
of the department of revenue and the secretary of revenue; (4) transfer
to the department of revenue the budget section of the finance division
of the department of administration; (5) make the secretary of revenue
an ex officio member of the council for finance and administration; and
(6) ensure that documents and other information that, under current law,
are confidential in the hands of an agency of the department would be
confidential when delivered to or filed with the secretary of revenue or
an employee of the secretary's office.
§§5A-2-2, §5A-2-3, §5A-2-4, §5A-2-5, §5A-2-6, §5A-2-7, §5A-2-8, §5A-
2-9, §5A-2-10, §5A-2-11, §5A-2-12, §5A-2-13, §5A-2-14, §5A-2-14a, §5A-2-
15, §5A-2-16, §5A-2-17, §5A-2-18, §5A-2-19, §5A-2-20, §5A-2-21, §5A-2-22,
§5A-2-23, §5A-2-24, §5A-2-25, §5A-2-26, §5A-2-27, §5A-2-28, §5A-2-29,
§5A-2-30 and §5A-2-31 would be repealed and their subject matter moved
to a new chapter and article of the Code.
§§5A-1-2, 5A-1-4, 5A-1-5, 5A-2-1, 5A-2-24 and 5A-1-32 would be
amended.
Strike-throughs indicate language in current law that would be
deleted and underscoring indicates new language that would be added.
Chapter 11B is new; therefore, strike-throughs and underscoring are
omitted.
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