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ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 187
(Senators Bowman, Bailey, Jenkins, Plymale, Kessler, White and Minard,
original sponsors)
____________
[Passed March 7, 2007; in effect from passage.]
____________
AN ACT to
repeal §4-10-4a, §4-10-5a, §4-10-5b, §4-10-6a, §4-10-10a
and §4-10-11a of the Code of West Virginia, 1931, as amended;
and to amend and reenact §4-10-1, §4-10-2, §4-10-3, §4-10-4,
§4-10-5, §4-10-6, §4-10-7, §4-10-8, §4-10-9, §4-10-10,
§4-10-11, §4-10-12, §4-10-13 and §4-10-14 of said code, all
relating to the West Virginia Performance Review Act; updating
legislative findings and definitions; continuing the Joint
Committee on Government Operations; updating powers and duties
of the Joint Committee on Government Operations and the Joint
Committee on Government Organization; requiring department
presentations; establishing a new agency review procedure and
schedule; establishing a new regulatory board review procedure
and schedule; authorizing compliance reviews; clarifying
termination procedures; and providing that agencies and boards
do not terminate pursuant to prior enactments.
Be it enacted by the Legislature of West Virginia:
That §4-10-4a, §4-10-5a, §4-10-5b, §4-10-6a, §4-10-10a and §4-
10-11a of the Code of West Virginia, 1931, as amended, be repealed;
and that §4-10-1, §4-10-2, §4-10-3, §4-10-4, §4-10-5, §4-10-6, §4-
10-7, §4-10-8, §4-10-9, §4-10-10, §4-10-11, §4-10-12, §4-10-13 and
§4-10-14 of said code be amended and reenacted, all to read as
follows:
ARTICLE 10. PERFORMANCE REVIEW ACT.
§4-10-1. Short title.
This article shall be known as and may be cited as the West
Virginia Performance Review Act.
§4-10-2. Legislative findings; performance review process
authorized.
(a) The Legislature finds that:
(1) State government has created many state agencies without
sufficient legislative oversight, regulatory accountability or an
effective system of checks and balances;
(2) State agencies have been created without demonstrable
evidence that their benefits to the public clearly justify their
creation;
(3) Once established, state agencies tend to acquire permanent
status, often without regard for the condition that gave rise to
their establishment;
(4) State agencies have been allowed to establish rules and at
times may acquire autonomy and authority inconsistent with principles of accountability;
(5) Employees of state agencies are often beyond the effective
control of elected officials and efforts to encourage modernization
or to review performance become difficult;
(6) Regulatory boards established pursuant to chapter thirty
of this code need periodic review to ascertain the need for their
continuation; and
(7) By establishing a process for the objective review of
state agencies and regulatory boards, their programs, functions and
activities, the Legislature may evaluate the need for their
continued existence, consolidation or termination and improve
government efficiency, effectiveness and accountability.
(b) The Legislature hereby authorizes a process to review the
operation and performance of state agencies and regulatory boards
to determine the need for their continued existence, consolidation
or termination.
§4-10-3. Definitions.
As used in this article, unless the context clearly indicates
a different meaning:
(a) "Agency" or "state agency" means a state governmental
entity, including any bureau, department, division, commission,
agency, committee, office, board, authority, subdivision, program,
council, advisory body, cabinet, panel, system, task force, fund,
compact, institution, survey, position, coalition or other entity
in the State of West Virginia.
(b) "Agency review" means a review performed on agencies of a department pursuant to the provisions of this article.
(c) "Committee" means the Joint Committee on Government
Operations.
(d) "Compliance review" means a review for compliance with
recommendations contained in a previous agency review or regulatory
board review conducted pursuant to the provisions of this article
and may include further inquiry of other issues as directed by the
President, the Speaker, the Legislative Auditor, the committee or
the joint standing committee.
(e) "Department" means the departments created within the
executive branch, headed by a secretary appointed by the Governor,
as authorized by the Code of West Virginia.
(f) "Department presentation" means a presentation by a
department pursuant to the provisions of this article.
(g) "Division" means the Performance Evaluation and Research
Division of the Legislative Auditor.
(h) "Joint standing committee" means the Joint Standing
Committee on Government Organization.
(i) "Privatize" means a contract to procure the services of a
private vendor to provide a service that is similar to, and/or in
lieu of, a service provided by a state agency.
(j) "Regulatory Board" means a board that regulates
professions and occupations, created under the provisions of
chapter thirty of this code.
(k) "Regulatory Board Review" means a review performed on a
regulatory board pursuant to the provisions of this article.
§4-10-4. Joint Committee on Government Operations.
(a) The Joint Committee on Government Operations created by
prior enactment of this article is hereby continued.
(b) The committee is composed of fifteen members as follows:
(1) Five members of the Senate, to be appointed by the
President, with no more than three being from the same political
party;
(2) Five members of the House of Delegates, to be appointed by
the Speaker, with no more than three being from the same political
party; and
(3) Five citizen members from this state who are not
legislators, public officials or public employees, to be appointed
by the Speaker of the House and the President of the Senate, with
no more than three being from the same political party and at least
one of whom shall reside in each congressional district of this
state.
(c) The committee has two cochairs, one selected by the
President of the Senate from the members appointed from the Senate
and one selected by the Speaker of the House of Delegates from the
members appointed from the House of Delegates.
(d) All members of the committee serve until their successors
have been appointed.
(e) All members of the committee are entitled to compensation
and reimbursement for expenses as authorized for members of the
Legislature in accordance with the performance of their interim
duties.
§4-10-5. Powers and duties of the committee
and joint standing
committee.
(a) To carry out the duties set forth in this article, the
committee or the joint standing committee, any authorized employee
of the committee, the joint standing committee, the Legislative
Auditor or any employee of the division working at the direction of
the committee or the joint standing committee, shall have access,
including copying, to all records of every state agency in West
Virginia.
(b) When furnishing information, agencies shall provide the
information in the format in which it is requested, if the request
is specific as to a preferred format.
(c) The committee or the joint standing committee may hold
public hearings in furtherance of the purposes of this article, at
such times and places within the state as desired. A member of the
committee or the joint standing committee may administer oaths to
persons testifying at such hearings or meetings.
(d) The committee or the joint standing committee may issue a
subpoena, with the signature of either cochair of the committee or
the joint standing committee and served in the manner provided by
law, to 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 or joint standing committee in the
performance of its duties.
(e) If any witness subpoenaed to appear at any hearing or meeting refuses or fails to appear or to answer questions put to
him or her, or refuses or fails to produce books, papers, documents
or records within his or her control when the same are demanded,
the committee or the joint standing committee, in its discretion,
may enforce obedience to its subpoena by attachment, fine or
imprisonment, as provided in article one of this chapter, or may
report the facts to the circuit court of Kanawha County or any
other court of competent jurisdiction and the court shall compel
obedience to the subpoena as though it had been issued by the
court.
(f) Witnesses subpoenaed to attend hearings or meetings
pursuant to the provisions of this article, except officers or
employees of the state, shall be allowed the same mileage and per
diem as is allowed witnesses before any petit jury.
(g) The committee or the joint standing committee, subject to
the approval of the Joint Committee on Government and Finance, may
employ such persons as it considers necessary to carry out the
duties and responsibilities under this article and may contract for
outside expertise in conducting reviews.
(h) The committee or the joint standing committee may collect,
and the agency or regulatory board shall promptly pay, the costs
associated with conducting the reviews performed under this
article, upon presentation of a statement for the costs incurred.
All money received by the committee or the joint standing committee
from this source shall be expended only for the purpose of covering
the costs associated with such services, unless otherwise directed by the Legislature.
§4-10-6. Department presentation and schedule.
(a) During the two thousand seven legislative interim period,
each department shall make a presentation pursuant to the
provisions of this section to the joint standing committee and the
committee.
(b) The department shall provide to the joint standing
committee and the committee a written copy of the presentation.
The presentation shall include:
(1) A departmental chart designating each agency under the
purview of the department;
(2) An analysis of the department's internal performance
measures and self-assessment systems; and
(3) For each agency under the purview of the department, the
following:
(A) The mission, goals and functions of the agency;
(B) The statutory or other legal authority under which the
agency operates;
(C) The number of employees of the agency for the immediate
past ten years;
(D) The budget for the agency for the immediate past ten
years;
(E) Any potential or actual loss of revenue due to operations,
changes in law or any other reason;
(F) The extent to which the agency has operated in the public
interest;
(G) The extent to which the agency has complied with state
personnel practices, including affirmative action requirements;
(H) The extent to which the agency has encouraged public
participation in the making of its rules and decisions and has
encouraged interested persons to report to it on the impact of its
rules and decisions on the effectiveness, economy and availability
of services that it has provided;
(I) The efficiency with which public inquiries or complaints
regarding the activities of the agency have been processed and
resolved;
(J) The extent to which statutory, regulatory, budgeting or
other changes are necessary to enable the agency to better serve
the interests of the public and to comply with the factors
enumerated in this subsection; and
(K) A recommendation as to whether the agency should be
continued, consolidated or terminated.
(c) The schedule for the presentations by the departments
shall be as follows:
(1) May, two thousand seven, Department of Administration;
(2) June, two thousand seven, Department of Education and the
Arts;
(3) July, two thousand seven, Department of Education,
including the Higher Education Policy Commission and the West
Virginia Council for Community and Technical College Education;
(4) August, two thousand seven, Department of Revenue;
(5) September, two thousand seven, Department of Environmental Protection;
(6) October, two thousand seven, Department of Health and
Human Resources, including the Bureau of Senior Services;
(7) November, two thousand seven, Department of Commerce;
(8) December, two thousand seven, Department of Military
Affairs and Public Safety; and
(9) January, two thousand eight, Department of Transportation.
§4-10-7. Agency review.
(a) The committee and the joint standing committee shall
conduct agency reviews, or authorize the division to conduct agency
reviews as one of its duties in addition to its other duties
prescribed by law, in accordance with generally accepted government
auditing standards (GAGAS) as promulgated by the U. S. Government
Accountability Office, on one or more of the agencies under the
purview of a department, during the year in which the department is
scheduled for review under the provisions of this article.
(b) The agency review may include, but is not limited to:
(1) An identification and description of the agency under
review;
(2) The number of employees of the agency for the immediate
past ten years;
(3) The budget for the agency for the immediate past ten
years;
(4) Whether the agency is effectively and efficiently carrying
out its statutory duties or legal authority;
(5) Whether the activities of the agency duplicate or overlap with those of other agencies and, if so, how these activities could
be consolidated;
(6) A cost-benefit analysis, as described in subsection (e) of
this section, on state services that are privatized or contemplated
to be privatized;
(7) An analysis of the extent to which agency websites are
accurate, updated and user friendly;
(8) An assessment of the utilization of information technology
systems within the agency, including interagency and intra-agency
communications;
(9) An analysis of any issues raised by the presentation made
by the department pursuant to the provisions of this article;
(10) An analysis of any other issues as the committee or the
joint standing committee may direct; and
(11) A recommendation as to whether the agency under review
should be continued, consolidated or terminated.
(c) The committee or the joint standing committee may vote on
the recommendation as to whether the agency under review should be
continued, consolidated or terminated. Recommendations of the
committee or the joint standing committee shall be given
considerable weight in determining if an agency should be
continued, consolidated or terminated.
(d) An agency may be subject to a compliance review pursuant
to the provisions of this article.
(e) A cost-benefit analysis authorized by this section may
include:
(1) The tangible benefits of privatizing the service;
(2) Any legal impediments that may limit or prevent
privatization of the service;
(3) The availability of multiple qualified and competitive
private vendors; and
(4) A cost comparison, including total fixed and variable,
direct and indirect, costs of the current governmental operation
and the private vendor contract.
§4-10-8. Schedule of departments for agency review.
(a) Each department shall make a presentation pursuant to the
provisions of this article, to the joint standing committee and the
committee during the first interim meeting after the regular
session of the year in which the department is to be reviewed
pursuant to the schedule set forth in subsection (b) of this
section.
(b) An agency review shall be performed on one or more
agencies under the purview of each department at least once every
six years, commencing as follows:
(1) Two thousand eight, the Department of Administration;
(2) Two thousand nine, the Department of Education and the
Arts, and the Department of Education, including the Higher
Education Policy Commission and the West Virginia Council for
Community and Technical College Education;
(3) Two thousand ten, the Department of Revenue and the
Department of Commerce;
(4) Two thousand eleven, the Department of Environmental Protection and the Department of Military Affairs and Public
Safety;
(5) Two thousand twelve, the Department of Health and Human
Resources, including the Bureau of Senior Services; and
(6) Two thousand thirteen, the Department of Transportation.
§4-10-9. Regulatory board review.
(a) The committee and the joint standing committee shall
conduct regulatory board reviews, or authorize the division to
conduct regulatory board reviews as one of its duties in addition
to its other duties prescribed by law, in accordance with generally
accepted government auditing standards (GAGAS) as promulgated by
the U. S. Government Accountability Office, on each regulatory
board to ascertain if there is a need for the continuation,
consolidation or termination of the regulatory board.
(b) A regulatory board review shall be performed on each
regulatory board at least once every twelve years. A regulatory
board may be subject to a compliance review pursuant to the
provisions of this article.
(c) When a new regulatory board is created, a date for a
regulatory board review shall be included in the act that creates
the board, within twelve years of the effective date of the act.
(d) The regulatory board review may include:
(1) Whether the board complies with the policies and
provisions of chapter thirty of this code and other applicable laws
and rules;
(2) Whether the board follows a disciplinary procedure which observes due process rights and protects the public interest;
(3) Whether the basis or facts that necessitated the initial
licensing or regulation of a profession or occupation have changed,
or other conditions have arisen that would warrant increased,
decreased or the same degree of regulation;
(4) Whether the composition of the board adequately represents
the public interest and whether the board encourages public
participation in its decisions rather than participation only by
the industry and individuals it regulates;
(5) Whether statutory changes are necessary to improve board
operations to enhance the public interest;
(6) An analysis of any other issues the committee or the joint
standing committee may direct; and
(7) A recommendation as to whether the regulatory board under
review should be continued, consolidated or terminated.
(e) The committee or the joint standing committee may vote on
the recommendation as to whether the regulatory board under review
should be continued, consolidated or terminated. Recommendations
of the committee or the joint standing committee shall be given
considerable weight in determining if an regulatory board should be
continued, consolidated or terminated.
§4-10-10. Regulatory board review schedule.
(a) A regulatory board review is required for all regulatory
boards.
(b) A regulatory board review shall be performed on each
regulatory board at least once every twelve years, commencing as follows:
(1) Two thousand eight: Board of Acupuncture; Board of Barbers
and Cosmetologists; and Board of Examiners in Counseling.
(2) Two thousand nine: Board of Hearing Aid Dealers; Board of
Licensed Dietitians; and Nursing Home Administrators Board.
(3) Two thousand ten: Board of Dental Examiners; Board of
Medicine; and Board of Pharmacy.
(4) Two thousand eleven: Board of Chiropractic Examiners;
Board of Osteopathy; and Board of Physical Therapy.
(5) Two thousand twelve: Board of Occupational Therapy; Board
of Examiners for Speech-Language Pathology and Audiology; and
Medical Imaging and Radiation Therapy Board of Examiners.
(6) Two thousand thirteen: Board of Professional Surveyors;
Board of Registration for Foresters; and Board of Registration for
Professional Engineers.
(7) Two thousand fourteen: Board of Examiners for Licensed
Practical Nurses; Board of Examiners for Registered Professional
Nurses; and Massage Therapy Licensure Board.
(8) Two thousand fifteen: Board of Architects; Board of
Embalmers and Funeral Directors; and Board of Landscape Architects.
(9) Two thousand sixteen: Board of Registration for
Sanitarians; Real Estate Appraiser Licensure and Certification
Board; and Real Estate Commission.
(10) Two thousand seventeen: Board of Accountancy; Board of
Respiratory Care Practitioners; and Board of Social Work Examiners.
(11) Two thousand eighteen: Board of Examiners of Psychologists; Board of Optometry; and Board of Veterinary
Medicine.
§4-10-11. Compliance review.
(a) After an agency review or a regulatory board review, if
the committee or the joint standing committee finds that an agency
or a regulatory board needs further review, then the committee or
the joint standing committee may request a compliance review.
(b) If the committee or the joint standing committee requests
a compliance review for an agency or a regulatory board, then it
must state, in writing, the specific reasons for the compliance
review and its expected completion date.
§4-10-12. Termination of an
agency or regulatory board;
reestablishment of terminated agency or regulatory
board.
(a) If the Legislature terminates an agency or regulatory
board, then the agency or regulatory board shall continue in
existence until the first day of July of the next succeeding year
for the purpose of winding up its affairs. Upon the expiration of
one year after termination, the agency or regulatory board shall
cease all activities.
(b) During the wind-up year, the impending termination may not
reduce nor otherwise limit the powers or authority of that
terminated agency or regulatory board.
(c) An agency that has been terminated pursuant to the
provisions of this article may be reestablished by the Legislature. If the agency is reestablished by the Legislature during the
wind-up year with substantially the same powers, duties or
functions, then the agency is considered continued.
(d) If a regulatory board is reestablished by the Legislature
during the wind-up year with substantially the same powers, duties
or functions, then the regulatory board is considered continued.
If a regulatory board is not reestablished by the Legislature
during the wind-up year, then the regulatory board is considered
terminated and the profession or occupation must apply for
regulation through the sunrise process, under the provisions of
this code, to be reestablished.
§4-10-13. Disposition of agency
or regulatory board assets,
equipment and records after termination.
(a) On or before the thirtieth day of June of the wind-up
year, the terminated agency or regulatory board shall file a
written statement with the Secretary of the Department of
Administration and the division describing the disposition of its
funds, assets, equipment and records.
(b) The division shall review the statement of the terminated
agency or regulatory board and report the results of its review to
the committee and the joint standing committee.
(c) Any unexpended funds of the terminated agency or
regulatory board shall revert to the fund from which they were
appropriated or, if that fund is abolished, to the General Revenue
Fund.
(d) All remaining assets and equipment of a terminated agency or regulatory board shall be transferred to the secretary of the
department of which it was a part or to the state agency for
surplus property in the Department of Administration.
(e) The records of a terminated agency or regulatory board
shall be deposited with the Department of Administration.
§4-10-14. Nullifying agency and regulatory board termination under
prior law.
No agency or regulatory board terminates pursuant to
references to this article.