Senate Bill No. 212
(By Senators Plymale, Wells, Oliverio, Helmick,
Boley, Tomblin, Unger, Green, Foster, Hall,
White, Edgell, Stollings, Browning, Laird, Jenkins, Williams and
McCabe)
____________
[Introduced January 13, 2010; referred to the Committee on
Education; and then to the Committee on Finance.]
____________
A BILL to repeal §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18-23-5,
§18-23-13, §18-23-14, §18-23-15, §18-23-18, §18-23-22,
§18-23-23 and §18-23-24 of the Code of West Virginia, 1931, as
amended; to repeal §18B-14-1, §18B-14-2, §18B-14-3, §18B-14-4,
§18B-14-5, §18B-14-5a, §18B-14-6 and §18B-14-7 of said code;
to amend and reenact §5-6-4a of said code; to amend and
reenact §18B-1B-4 of said code; to amend and reenact §18B-2A-4
of said code; to amend and reenact §18B-2B-6 of said code; to
amend and reenact §18B-4-6 of said code; to amend and reenact
§18B-5-4 of said code; to amend and reenact §18B-10-8 of said
code; and to amend said code by adding thereto a new article,
designated §18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4,
§18B-19-5, §18B-19-6, §18B-19-7, §18B-19-8, §18B-19-9,
§18B-19-10, §18B-19-11, §18B-19-12, §18B-19-13, §18B-19-14, §18B-19-15, §18B-19-16, §18B-19-17 and §18B-19-18, all
relating to higher education capital facilities generally;
repealing certain specific duties of governing boards of
higher education institutions; eliminating condemnation rights
of those boards; eliminating execution of contracts and deeds
by those boards; eliminating certain obligation concerning
capital construction and repair duties; eliminating the
authority of certain state institutions from selling certain
properties and lease-back provisions; replacing those duties
that are being repealed with similar responsibilities; setting
forth certain specific responsibilities of the Higher
Education Policy Commission and the Council for Community and
Technical College Education; reviewing tuition and fee
increases; reviewing and approving capital project planning,
financing, management and maintenance; permitting the
acquisition, sale, transfer, exchange, lease, conveyance and
condemnation of real property; permitting the construction and
operation of capital facilities; permitting the collection and
use of certain capital fees; establishing in the State
Treasury a capital maintenance fund for each state institution
of higher education; setting forth legislative findings and
intent; defining terms; requiring rulemaking; and providing
for system facilities institution and facilities planning.
Be it enacted by the Legislature of West Virginia:
That §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18-23-5,
§18-23-13, §18-23-14, §18-23-15, §18-23-18, §18-23-22, §18-23-23
and §18-23-24 of the Code of West Virginia, 1931, as amended, be
repealed; that §18B-14-1, §18B-14-2, §18B-14-3, §18B-14-4,
§18B-14-5, §18B-14-5a, §18B-14-6 and §18B-14-7 of said code be
repealed; that §5-6-4a of said code be amended and reenacted; that
§18B-1B-4 of said code be amended and reenacted; that §18B-2A-4 of
said code be amended and reenacted; that §18B-2B-6 of said code be
amended and reenacted; that §18B-4-6 of said code be amended and
reenacted; that §18B-5-4 of said code be amended and reenacted;
that §18B-10-8 of said code be amended and reenacted; and that said
code be amended by adding thereto a new article, designated
§18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5, §18B-19-6,
§18B-19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11,
§18B-19-12, §18B-19-13, §18B-19-14, §18B-19-15, §18B-19-16,
§18B-19-17 and §18B-19-18, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 6. STATE BUILDINGS.
§5-6-4a. Review of real property contracts and agreements; master
plan for office space.
(a) The Secretary of Administration shall provide to the Joint Committee on Government and Finance a copy of a contract or
agreement for real property exceeding $1 million and a report
setting forth a detailed summary of the terms of the contract or
agreement, including the name of the owner of the property and the
agent involved in the sale, at least thirty days prior to any sale,
exchange, transfer, purchase, lease purchase, lease or rental of
real property, any refundings of lease purchases, leases or rental
agreements, any construction of new buildings and any other
acquisition or lease of buildings, office space or grounds by any
state agency,
including the Higher Education Policy Commission but
excepting the transactions of the
Higher Education Policy
Commission, Council for Community and Technical College Education,
state institutions of higher education
known as Marshall University
and West Virginia University and the Division of Highways for state
road purposes pursuant to article two-a, chapter seventeen of this
code:
Provided, That a contract or agreement for the lease
purchase, lease or rental of real property by any state agency,
where the costs of real property acquisition and improvements are
to be financed, in whole or in part, with bond proceeds, may
contain a preliminary schedule of rents and leases for purposes of
review by the committee.
(b) For renewals of contracts or agreements required to be
reported by
the provisions of this section, the Secretary of
Administration shall provide a report setting forth a detailed summary of the terms of the contract or agreement, including the
name of the owner of the property.
(c) Within thirty days after receipt of the contract,
agreement or report, the committee shall meet and review the
contract, agreement or report.
(d) On or before the first day of July, two thousand six, the
Secretary of Administration shall conduct an inventory of available
office space and office space needs and shall develop and present
a master plan for the utilization of office space for state
agencies to the Joint Committee on Government and Finance.
(e) The governing boards of the state institutions of higher
education known as Marshall University and West Virginia University
shall provide to the Joint Committee on Government and Finance a
copy of any contract or agreement for real property exceeding one
million dollars and shall make available to the Joint Committee on
Government and Finance upon request a summary of the terms of the
contract or agreement, including the name of the owner of the
property and the agent involved in the sale.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-4. Powers and duties of Higher Education Policy
Commission.
(a) The primary responsibility of the commission is to
develop, establish and implement policy that will achieve the goals and objectives found in section one-a, article one
and article
one-d of this chapter. The commission shall exercise its authority
and carry out its responsibilities in a manner that is consistent
and not in conflict with the powers and duties assigned by law to
the West Virginia Council for Community and Technical College
Education and the powers and duties assigned to the governing
boards of Marshall University and West Virginia University,
respectively. To that end, the commission, has the following
powers and duties relating to the institutions under its
jurisdiction:
(1) Develop, oversee and advance the public policy agenda
pursuant to section one, article one-a of this chapter to address
major challenges facing the state, including, but not limited to,
the goals and objectives found in section one-a, article one of
this chapter
and article one-d of this chapter and including
specifically those goals and objectives pertaining to the compacts
created pursuant to section
two, article one-a seven, article one-d
of this chapter and to develop and implement the master plan
described in section
nine of this article five, article one-d of
this chapter for the purpose of accomplishing the mandates of this
section;
(2) Develop, oversee and advance the
promulgation and
implementation
jointly with the Council of a financing
policy rule
for
state institutions of higher education
in West Virginia under its
jurisdiction. The
policy rule shall meet the following
criteria:
(A) Provide
for an adequate level of
education educational and
general funding for institutions pursuant to section five, article
one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not
limited to, human and physical resources and
eliminating deferred
maintenance;
(C) Invest and provide incentives for achieving the priority
goals in the public policy agenda, including, but not limited to,
those found in section one-a, article one of this chapter; and
(D)
Incorporate the plan for strategic funding to strengthen
capacity for support of community and technical college education
established by the West Virginia Council for Community and
Technical College Education pursuant to the provisions of section
six, article two-b of this chapter; Establish standards for
evaluating institutions' requests for tuition and fee increases,
other than at the state institutions of higher education known as
Marshall University and West Virginia University;
(3) In collaboration with the council, create a policy
leadership structure capable of the following actions:
(A) Developing, building public consensus around and
sustaining attention to a long-range public policy agenda. In
developing the agenda, the commission and council shall seek input from the Legislature and the Governor and specifically from the
State Board of Education and local school districts in order to
create the necessary linkages to assure smooth, effective and
seamless movement of students through the public education and
post-secondary education systems and to ensure that the needs of
public school courses and programs can be fulfilled by the
graduates produced and the programs offered;
(B) Ensuring that the governing boards carry out their duty
effectively to govern the individual institutions of higher
education; and
(C) Holding the higher education institutions and the higher
education systems as a whole accountable for accomplishing their
missions and implementing the provisions of the compacts;
(4) Develop and adopt each institutional compact;
(5) Review and adopt the annual updates of the institutional
compacts;
(6) Serve as the accountability point to
state policymakers:
(A) The Governor for implementation of the public policy
agenda; and
(B) The Legislature by maintaining a close working
relationship with the legislative leadership and the Legislative
Oversight Commission on Education Accountability;
(7) Jointly with the council, promulgate legislative rules
pursuant to article three-a, chapter twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this
chapter;
(8) Establish and implement a peer group for each institution
as described in section three, article one-a of this chapter;
(9) Establish and implement the benchmarks and performance
indicators necessary to measure institutional
achievement towards
progress in achieving state policy priorities and institutional
missions pursuant to section
two, article one-a seven, article
one-d of this chapter;
(10)
Annually Report to the Legislature and to the Legislative
Oversight Commission on Education Accountability
annually during
the January interim
meetings meeting period on a date and at a time
and location to be determined by the President of the Senate and
the Speaker of the House of Delegates. The report shall address at
least the following:
(A) The performance of its system of higher education during
the previous fiscal year, including, but not limited to, progress
in meeting
goals stated in the compacts and progress of the
institutions and the higher education system as a whole in meeting
the goals,
and objectives,
and priorities set forth in
section
one-a article one
and article one-d of this chapter
and in the
commission's master plan and institutional compacts;
(B) An analysis of enrollment data collected pursuant to
section one, article ten of this chapter and recommendations for any changes necessary to assure access to high-quality, high-demand
education programs for West Virginia residents;
(C) (B) The
commission's priorities
established for
new
operating and capital
investment investments needs pursuant to
subdivision (11) of this subsection and the justification for
such
the priority;
(D) (C) Recommendations of the commission for statutory
changes
needed necessary or expedient to
further the achieve state
goals and objectives;
set forth in article one of this chapter
(11) Establish a formal process for identifying
needs for
capital investment capital investment needs and for determining
priorities for these investments for consideration by the Governor
and the Legislature as part of the appropriation request process
pursuant to article nineteen of this chapter; It is the
responsibility of the Commission to assure a fair distribution of
funds for capital projects between the Commission and the Council.
To that end the Commission shall take the following steps:
(A) Receive the list of priorities developed by the Council
for capital investment for the institutions under the Council's
jurisdiction pursuant to subsection (b), section six, article two-b
of this chapter;
(B) Place the ranked list of projects on the agenda for action
within sixty days of the date on which the list was received;
(C) Select a minimum of three projects from the list submitted by the Council to be included on the ranked list established by the
Commission. At least one of the three projects selected must come
from the top two priorities established by the Council;
(12) Maintain guidelines for institutions to follow concerning
extensive capital project management except the governing boards of
Marshall University and West Virginia University are not subject to
the provisions of this subdivision as it relates to the state
institutions of higher education known as Marshall University and
West Virginia University. The guidelines shall provide a process
for developing capital projects, including, but not limited to, the
notification by an institution to the Commission of any proposed
capital project which has the potential to exceed one million
dollars in cost. Such a project may not be pursued by an
institution without the approval of the Commission. An institution
may not participate directly or indirectly with any public or
private entity in any capital project which has the potential to
exceed one million dollars in cost;
(12) Develop standards and evaluate governing board requests
for capital project financing in accordance with article nineteen
of this chapter;
(13) Ensure that governing boards manage capital projects and
facilities needs effectively, including review and approval or
disapproval of capital projects, in accordance with article
nineteen of this chapter;
(13) (14) Acquire legal services
as that are considered
necessary, including representation of the commission, its
institutions, employees and officers before any court or
administrative body, notwithstanding any other provision of this
code to the contrary. The counsel may be employed either on a
salaried basis or on a reasonable fee basis. In addition, the
commission may, but is not required to, call upon the Attorney
General for legal assistance and representation as provided by law;
(14) (15) Employ a Chancellor for Higher Education pursuant to
section five of this article;
(15) (16) Employ other staff as necessary and appropriate to
carry out the duties and responsibilities of the commission and the
council, in accordance with
the provisions of article four of this
chapter;
(16) (17) Provide suitable offices
in Charleston for the
chancellor, vice chancellors and other staff;
(17) (18) Advise and consent in the appointment of the
presidents of the institutions of higher education under its
jurisdiction pursuant to section six of this article. The role of
the commission in approving an institutional president is to assure
through personal interview that the person selected understands and
is committed to achieving the goals and objectives as set forth in
the institutional compact and in section one-a, article one of this
chapter;
(18) (19) Approve the total compensation package from all
sources for presidents of institutions under its jurisdiction, as
proposed by the governing boards. The governing boards
must shall
obtain approval from the commission of the total compensation
package both when institutional presidents are employed initially
and afterward when any change is made in the amount of the total
compensation package;
(19) (20) Establish and implement the policy of the state to
assure that parents and students have sufficient information at the
earliest possible age on which to base academic decisions about
what is required for students to be successful in college, other
post-secondary education and careers related, as far as possible,
to results from current assessment tools in use in West Virginia;
(20) (21) Approve and implement a uniform standard jointly
with the council to determine which students shall be placed in
remedial or developmental courses. The standard shall be aligned
with college admission tests and assessment tools used in West
Virginia and shall be applied uniformly by the governing boards
throughout the public higher education system. The chancellors
shall develop a clear, concise explanation of the standard which
they shall communicate to the State Board of Education and the
State Superintendent of Schools;
(21) Review and approve or disapprove capital projects as
described in subdivision (11) of this subsection;
(22) Jointly with the council, develop and implement an
oversight plan to manage systemwide technology
such as the
following by:
(A) Expanding distance learning and technology networks to
enhance teaching and learning, promote access to quality
educational offerings with minimum duplication of effort; and
(B) Increasing the delivery of instruction to nontraditional
students, to provide services to business and industry and increase
the management capabilities of the higher education system;
(C) Notwithstanding any other provision of law or this code to
the contrary, the council, commission and state institutions of
higher education are not subject to the jurisdiction of the Chief
Technology Officer for any purpose;
(23) Establish and implement policies and procedures to ensure
that
students a student may transfer and apply toward the
requirements for a bachelor's degree the maximum number of credits
earned at any regionally accredited in-state or out-of-state
community and technical college with as few requirements to repeat
courses or to incur additional costs as is consistent with sound
academic policy;
(24) Establish and implement policies and procedures to ensure
that
students a student may transfer and apply toward the
requirements for a degree the maximum number of credits earned at
any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur
additional costs as is consistent with sound academic policy;
(25) Establish and implement policies and procedures to ensure
that
students a student may transfer and apply toward the
requirements for a master's degree the maximum number of credits
earned at any regionally accredited in-state or out-of-state higher
education institution with as few requirements to repeat courses or
to incur additional costs as is consistent with sound academic
policy;
(26) Establish and implement policies and programs, in
cooperation with the council and the institutions of higher
education, through which
students a student who
have has gained
knowledge and skills through employment, participation in education
and training at vocational schools or other education institutions,
or Internet-based education programs, may demonstrate by
competency-based assessment that
they have he or she has the
necessary knowledge and skills to be granted academic credit or
advanced placement standing toward the requirements of an
associate
associate's degree or a bachelor's degree at a state institution of
higher education;
(27) Seek out and attend regional, national and international
meetings and forums on education and workforce development-related
topics, as in the commission's discretion is critical for the
performance of their duties as members, for the purpose of keeping abreast of education trends and policies to aid it in developing
the policies for this state to meet the established education goals
and objectives pursuant to section one-a, article one of this
chapter
and article one-d of this chapter;
(28)
Develop, establish Promulgate and implement a rule for
higher education governing boards and institutions to follow when
considering capital projects
pursuant to article nineteen of this
chapter; The guidelines shall assure that the governing boards and
institutions do not approve or promote capital projects involving
private sector businesses which would have the effect of reducing
property taxes on existing properties or avoiding, in whole or in
part, the full amount of taxes which would be due on newly
developed or future properties
(29) Consider and submit to the appropriate agencies of the
executive and legislative branches of state government
a budget an
appropriation request that reflects recommended appropriations
from
for the commission and the institutions under its jurisdiction.
The commission shall submit as part of its
budget proposal
appropriation request the separate recommended
appropriations it
appropriation request received from the council, both for the
council and the institutions under the council's jurisdiction. The
commission annually shall submit the proposed institutional
allocations based on each institution's progress toward meeting the
goals of its institutional compact;
(30) The commission
has the authority to may assess
institutions under its jurisdiction, including the state
institutions of higher education known as Marshall University and
West Virginia University, for the payment of expenses of the
commission or for the funding of statewide higher education
services, obligations or initiatives related to the goals set forth
for the provision of public higher education in the state;
(31) Promulgate rules allocating reimbursement of
appropriations, if made available by the Legislature, to
institutions of higher education for qualifying noncapital
expenditures incurred in
the provision of providing services to
students with physical, learning or severe sensory disabilities;
(32) Make appointments to boards and commissions where this
code requires appointments from the State College System Board of
Directors or the University of West Virginia System Board of
Trustees which were abolished effective June 30, 2000, except in
those cases where the required appointment has a specific and
direct connection to the provision of community and technical
college education, the appointment shall be made by the council.
Notwithstanding any provisions of this code to the contrary, the
commission or the council may appoint one of its own members or any
other citizen of the state as its designee. The commission and
council shall appoint the total number of persons in the aggregate
required to be appointed by these previous governing boards;
(33) Pursuant to
the provisions of article three-a, chapter
twenty-nine-a of this code and section six, article one of this
chapter, promulgate rules
as necessary or expedient to fulfill the
purposes of this chapter. The commission and the council shall
promulgate a uniform joint legislative rule for the purpose of
standardizing, as much as possible, the administration of personnel
matters among the
state institutions of higher education;
(34) Determine when a joint rule among the governing boards of
the institutions under its jurisdiction is necessary or required by
law and, in those instances, in consultation with the governing
boards of all the institutions under its jurisdiction, promulgate
the joint rule;
(35)
In consultation with the governing boards of Marshall
University and West Virginia University, Promulgate and implement
a
policy rule jointly with the council whereby course credit earned
at a community and technical college transfers for program credit
at any other state institution of higher education and is not
limited to fulfilling a general education requirement;
(36) Promulgate a joint rule with the Council establishing
tuition and fee policy for all institutions of higher education,
other than state institutions of higher education known as Marshall
University and West Virginia University which are subject to the
provisions of section one, article ten of this chapter. The rule
shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Such other policies as the Commission and Council consider
appropriate;
(37) (36) Implement general disease awareness initiatives to
educate parents and students, particularly dormitory residents,
about meningococcal meningitis; the potentially life-threatening
dangers of contracting the infection; behaviors and activities that
can increase risks; measures that can be taken to prevent contact
or infection; and potential benefits of vaccination. The
commission shall encourage institutions that provide medical care
to students to provide access to the vaccine for those who wish to
receive it; and
(38) (37) Notwithstanding any other provision of this code to
the contrary, sell, lease, convey or otherwise dispose of all or
part of any real property
which it may own that it owns, in
accordance with article nineteen of this chapter. either by
contract or at public auction, and to retain the proceeds of any
such sale or lease: Provided, That:
(A) The Commission may not sell, lease, convey or otherwise
dispose of any real property without first:
(i) Providing notice to the public in the county in which the real property is located by a Class II legal advertisement pursuant
to section two, article three, chapter fifty-nine of this code;
(ii) Holding a public hearing on the issue in the county in
which the real property is located; and
(iii) Providing notice to the Joint Committee on Government
and Finance; and
(B) Any proceeds from the sale, lease, conveyance or other
disposal of real property that is used jointly by institutions or
for statewide programs under the jurisdiction of the Commission or
the Council shall be transferred to the General Revenue Fund of the
state.
(b) In addition to the powers and duties listed in subsection
(a) of this section, the commission has the following general
powers and duties related to its role in developing, articulating
and overseeing the implementation of the public policy agenda:
(1) Planning and policy leadership, including a distinct and
visible role in setting the state's policy agenda and in serving as
an agent of change;
(2) Policy analysis and research focused on issues affecting
the system as a whole or a geographical region
thereof of the
system;
(3) Development and implementation of institutional mission
definitions, including use of incentive funds to influence
institutional behavior in ways that are consistent with public priorities;
(4) Academic program review and approval for institutions
under its jurisdiction, including the use of institutional missions
as a template to judge the appropriateness of both new and existing
programs and the authority to implement needed changes. The
commission's authority to review and approve academic programs for
either the state institution of higher education known as Marshall
University or West Virginia University is limited to programs that
are proposed to be offered at a new location not presently served
by that institution;
(5) Distribution of funds appropriated to the commission,
including incentive and performance-based funding;
(6) Administration of state and federal student aid programs
under the supervision of the Vice Chancellor for Administration,
including promulgation of any rules necessary to administer those
programs;
(7) Serving as the agent to receive and disburse public funds
when a governmental entity requires designation of a statewide
higher education agency for this purpose;
(8)
Development, establishment and implementation of
Developing, establishing and implementing information, assessment
and accountability systems, including
maintenance of maintaining
statewide data systems that facilitate long-term planning and
accurate measurement of strategic outcomes and performance indicators;
(9) Jointly with the council,
developing, establishing
promulgating and implementing
policies rules for licensing and
oversight for both public and private degree-granting and
nondegree-granting institutions that provide post-secondary
education courses or programs in the state pursuant to the findings
and policy recommendations required by section eleven of this
article;
(10)
Development, implementation and oversight of Developing,
implementing and overseeing statewide and
regionwide regional
projects and initiatives related to providing post-secondary
education at the baccalaureate level and above such as those using
funds from federal categorical programs or those using incentive
and performance-based funding from any source; and
(11) Quality assurance that intersects with all other duties
of the commission particularly in the areas of research, data
collection and analysis, planning, policy analysis, program review
and approval, budgeting and information and accountability systems.
(c) In addition to the powers and duties provided in
subsections (a) and (b) of this section and any other powers and
duties as may be assigned to it by law, the commission has
such any
other powers and duties
as may be necessary or expedient to
accomplish the purposes of this article.
(d) The commission
is authorized to may withdraw specific powers of
any a governing board of an institution under its
jurisdiction for a period not to exceed two years, if the
commission makes a determination that
any of the following
conditions exist:
(1) The governing board has failed for two consecutive years
to develop
or implement an institutional compact as required in
article
one one-d of this chapter;
(2) The commission has received information, substantiated by
independent audit, of significant mismanagement or failure to carry
out the powers and duties of the board of governors according to
state law; or
(3) Other circumstances which, in the view of the commission,
severely limit the capacity of the board of governors to carry out
its duties and responsibilities.
The period of withdrawal of Specific powers
of a governing
board may not
be withdrawn for a period exceed exceeding two years.
During
which that time the commission
is authorized to may take
all
steps necessary to
reestablish the conditions for restoration of
restore sound, stable and responsible institutional governance.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the following powers and
duties:
(a) Determine, control, supervise and manage the financial, business and education policies and affairs of the state
institution of higher education under its jurisdiction;
(b) Develop a master plan for the institution under its
jurisdiction.
(1) The ultimate responsibility for developing and updating
the each master
plans plan at the institutional level resides with
the board of governors, but the ultimate responsibility for
approving the final version of
the each institutional master
plans
plan, including periodic updates, resides with the commission or
council, as appropriate.
(2) Each
institutional master plan shall include, but not be
limited to, the following:
(A) A detailed demonstration of how the
institutional master
plan will be used to meet the goals and objectives of the
institutional compact;
(B) A well-developed set of goals outlining missions, degree
offerings, resource requirements, physical plant needs, personnel
needs, enrollment levels and other planning determinates and
projections necessary in a plan to assure that the needs of the
institution's area of responsibility for a quality system of higher
education are addressed;
(C)
Document the involvement of Documentation showing how the
governing board involved the commission or council, as appropriate,
institutional constituency groups, clientele of the institution and the general public in the development of all segments of the
institutional master plan.
(3) The plan shall be established for periods of not
less
fewer than three nor more than five years and shall be revised
periodically as necessary, including
the addition or deletion of
adding or deleting degree programs as
the governing board in
the
its discretion
of the appropriate governing board, are determines
is necessary;
(c) Develop a ten-year campus development plan in accordance
with article nineteen of this chapter;
(c) (d) Prescribe for the institution, under its jurisdiction,
in accordance with its master plan and compact, specific functions
and responsibilities to achieve the goals, objectives and
priorities established in articles one and one-d of this chapter to
meet the higher education needs of its area of responsibility and
to avoid unnecessary duplication;
(d) (e) Direct the preparation of
a budget an appropriation
request for the institution under its jurisdiction, which relates
directly to missions, goals and projections as found in the
institutional master plan and the institutional compact;
(e) (f) Consider, revise and submit to the commission or
council, as appropriate,
a budget an appropriation request on
behalf of the institution under its jurisdiction;
(f) (g) Review, at least every five years, all academic programs offered at the institution under its jurisdiction. The
review shall address the viability, adequacy and necessity of the
programs in relation to established state goals, objectives and
priorities, the institutional master plan, the institutional
compact and the education and workforce needs of its responsibility
district. As a part of the review, each governing board shall
require the institution under its jurisdiction to conduct periodic
studies of its graduates and their employers to determine placement
patterns and the effectiveness of the education experience. Where
appropriate, these studies should coincide with the studies
required of many academic disciplines by their accrediting bodies;
(g) (h) Ensure that the sequence and availability of academic
programs and courses offered by the institution under its
jurisdiction is such that students have the maximum opportunity to
complete programs in the time frame normally associated with
program completion. Each governing board is responsible to see
that the needs of nontraditional college-age students are
appropriately addressed and, to the extent it is possible for the
individual governing board to control, to assure core course work
completed at the institution
under its jurisdiction is transferable
to any other state institution of higher education for credit with
the grade earned;
(h) (i) Subject to
the provisions of article one-b of this
chapter, approve the teacher education programs offered in the institution under its control. In order to permit graduates of
teacher education programs to receive a degree from a nationally
accredited program and in order to prevent expensive duplication of
program accreditation, the commission may select and use one
nationally recognized teacher education program accreditation
standard as the appropriate standard for program evaluation;
(i) (j) Use Involve faculty, students and classified employees
in institutional-level planning and decisionmaking when those
groups are affected;
(j) (k) Subject to the provisions of federal law and pursuant
to
the provisions of article articles seven, eight and nine of this
chapter and to rules adopted by the commission and the council,
administer a system for the management of personnel matters,
including, but not limited to, personnel classification,
compensation and discipline for employees at the institution under
its jurisdiction;
(k) (l) Administer a system for hearing employee grievances
and appeals. Notwithstanding any other provision of this code to
the contrary, the procedure established in article two, chapter
six-c of this code is the exclusive mechanism for hearing
prospective employee grievances and appeals;
(l) (m) Solicit and use or expend voluntary support, including
financial contributions and support services, for the institution
under its jurisdiction;
(m) (n) Appoint a president for the institution under its
jurisdiction subject to
the provisions of section six, article
one-b of this chapter;
(n) (o) Conduct written performance evaluations of the
president pursuant to section six, article one-b of this chapter;
(o) (p) Employ all faculty and staff at the institution under
its jurisdiction. The employees operate under the supervision of
the president, but are employees of the governing board;
(p) (q) Submit to the commission or council, as appropriate,
no later than the first day of November of each year an annual
report of the performance of the institution under its jurisdiction
during the previous fiscal year as compared to established state
goals, objectives, and priorities, and goals stated in its master
plan and institutional compact; any data or reports requested by
the commission or council, as appropriate, within the time frame
set by the commission or council;
(q) (r) Enter into contracts or consortium agreements with the
public schools, private schools or private industry to provide
technical, vocational, college preparatory, remedial and customized
training courses at locations either on campuses of the
public
institution state institutions of higher education or at off-campus
locations in the institution's responsibility district. To
accomplish this goal, the boards may share resources among the
various groups in the community;
(r) (s) Provide and transfer funding and property to certain
corporations pursuant to section ten, article twelve of this
chapter;
(s) (t) Delegate, with prescribed standards and limitations,
the part of its power and control over the business affairs of the
institution to the president in any case where it considers the
delegation necessary and prudent in order to enable the institution
to function in a proper and expeditious manner and to meet the
requirements of its master plan and
institutional compact. If a
governing board elects to delegate any of its power and control
under
the provisions of this subsection, it shall enter the
delegation in the minutes of the meeting when the decision was made
and shall notify the commission or council, as appropriate. Any
delegation of power and control may be rescinded by the appropriate
governing board, the commission or council, as appropriate, at any
time, in whole or in part, except that the commission may not
revoke delegations of authority made by the governing boards of
Marshall University or West Virginia University as they relate to
the state institutions of higher education known as Marshall
University and West Virginia University;
(t) (u) Unless changed by the commission or the council, as
appropriate, continue to abide by existing rules setting forth
standards for acceptance of advanced placement credit for the
institution under its jurisdiction. Individual departments at a state institution of higher education may, upon approval of the
institutional faculty senate, require higher scores on the advanced
placement test than scores designated by the governing board when
the credit is to be used toward meeting a requirement of the core
curriculum for a major in that department;
(u) (v) Consult, cooperate and work with the State Treasurer
and the State Auditor to update as necessary and maintain an
efficient and cost-effective system for the financial management
and expenditure of
special appropriated and nonappropriated revenue
and appropriated state funds at the institution under its
jurisdiction that ensures that properly submitted requests for
payment be paid on or before
the due date but, in any event, within
fifteen days of receipt in the State Auditor's office;
(v) (w) In consultation with the appropriate chancellor and
the Secretary of the Department of Administration, develop, update
as necessary and maintain a plan to administer a consistent method
of conducting personnel transactions, including, but not limited
to, hiring, dismissal, promotions and transfers at the institution
under its jurisdiction. Each personnel transaction shall be
accompanied by the appropriate standardized system or forms, which
shall be submitted to the respective governing board and the
Department of Finance and Administration;
(w) (x) Notwithstanding any other provision of this code to
the contrary, transfer funds from any account specifically appropriated for its use to any corresponding line item in a
general revenue account at any agency or institution under its
jurisdiction as long as
such the transferred funds are used for the
purposes appropriated;
(x) (y) Transfer funds from appropriated special revenue
accounts for capital improvements under its jurisdiction to special
revenue accounts at agencies or institutions under its jurisdiction
as long as
such the transferred funds are used for the purposes
appropriated
in accordance with article nineteen of this chapter;
(y) (z) Notwithstanding any other provision of this code to
the contrary, acquire legal services that are necessary, including
representation of the governing board, its institution, employees
and officers before any court or administrative body. The counsel
may be employed either on a salaried basis or on a reasonable fee
basis. In addition, the governing board may, but is not required
to, call upon the Attorney General for legal assistance and
representation as provided by law; and
(z) (aa) Contract and pay for disability insurance for a class
or classes of employees at a state institution of higher education
under its jurisdiction.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL
COLLEGE EDUCATION.
§18B-2B-6. Powers and duties of the council.
(a) The council is the sole agency responsible for administration of vocational-technical-occupational education and
community and technical college education in the state. The
council has jurisdiction and authority over the community and
technical colleges and the statewide network of independently
accredited community and technical colleges as a whole, including
community and technical college education programs as defined in
section two, article one of this chapter.
(b) The council shall propose rules pursuant to section six,
article one of this chapter and article three-a, chapter twenty-
nine-a of this code to implement
the provisions of this section and
applicable provisions of article one-d of this chapter.
(1) To
implement
the provisions of article one-d of this chapter relevant
to community and technical colleges, the council may propose rules
jointly with the commission or separately and may choose to address
all components of the accountability system in a single rule or may
propose additional rules to cover specific components.
(2) The rules pertaining to financing policy and benchmarks
and indicators required by this section shall be filed with the
Legislative Oversight Commission on Education Accountability by the
first day of October, two thousand eight. Nothing in this
subsection requires other rules of the Council to be promulgated
again under the procedure set forth in article three-a, chapter
twenty-nine-a of this code unless such rules are rescinded,
revised, altered or amended. and
(3) The Legislature finds that an emergency exists and,
therefore, the Council shall propose an emergency rule or rules to
implement the provisions of this section relating to the financing
policy and benchmarks and indicators in accordance with section
six, article one of this chapter and article three-a, chapter
twenty-nine-a of this code by the first day of October, two
thousand eight. The emergency rule or rules may not be implemented
without prior approval of the Legislative Oversight Commission on
Education Accountability.
(c) The council has the following powers and duties relating
to the authority established in subsection (a) of this section:
(1) Develop, oversee and advance the public policy agenda for
community and technical college education for the purpose of
accomplishing the mandates of this section, including, but not
limited to, the following:
(A) Achieving the goals and objectives established in articles
one and one-d of this chapter;
(B) Addressing the goals and objectives contained in the
institutional compacts created pursuant to section seven, article
one-d of this chapter; and
(C) Developing and implementing the master plan described in
section five, article one-d of this chapter;
(2) Propose a legislative rule pursuant to subsection (b) of
this section and article three-a, chapter twenty-nine-a of this code to develop and implement a financing policy for community and
technical college education in West Virginia. The rule shall meet
the following criteria:
(A) Provide
for an adequate level of
education educational and
general funding for institutions pursuant to section five, article
one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not
limited to, human and physical resources and deferred maintenance;
(C) Establish a plan for strategic funding to strengthen
capacity for support of community and technical college education;
and
(D) Establish a plan that measures progress and provides
performance-based funding to institutions which make significant
progress in the following specific areas:
(i) Achieving the objectives and priorities established in
article one-d of this chapter;
(ii) Serving targeted populations, especially working age
adults twenty-five years of age and over;
(iii) Providing access to high-cost, high-demand technical
programs in every region of the state;
(iv) Increasing the percentage of functionally literate adults
in every region of the state; and
(v) Providing high-quality community and technical college
education services to residents of every region of the state;
and
(E) Establish standards for evaluating institutions' requests
for tuition and fee increases;
(3) Create a policy leadership structure relating to community
and technical college education capable of the following actions:
(A) Developing, building public consensus around and
sustaining attention to a long-range public policy agenda. In
developing the agenda, the council shall seek input from the
Legislature and the Governor and specifically from the State Board
of Education and local school districts in order to create the
necessary linkages to assure smooth, effective and seamless
movement of students through the public education and post-
secondary education systems and to ensure that the needs of public
school courses and programs can be fulfilled by the graduates
produced and the programs offered;
(B) Ensuring that the governing boards of the institutions
under the council's jurisdiction carry out their duty effectively
to govern the individual institutions of higher education; and
(C) Holding each community and technical college and the
statewide network of independently accredited community and
technical colleges as a whole accountable for accomplishing their
missions and achieving the goals and objectives established in
articles one, one-d and three-c of this chapter;
(4) Develop for inclusion in the statewide public agenda, a
plan for raising education attainment, increasing adult literacy, promoting workforce and economic development and ensuring access to
advanced education for the citizens of West Virginia;
(5) Provide statewide leadership, coordination, support and
technical assistance to the community and technical colleges and to
provide a focal point for visible and effective advocacy for their
work and for the public policy agendas approved by the commission
and council.
(6) Review and adopt annually all institutional compacts for
the community and technical colleges pursuant to
the provisions of
section seven, article one-d of this chapter;
(7) Fulfill the mandates of the accountability system
established in article one-d of this chapter and report on progress
in meeting established goals, objectives and priorities to the
elected leadership of the state;
(8) Propose a legislative rule pursuant to subsection (b) of
this section and article three-a, chapter twenty-nine-a of this
code to establish benchmarks and indicators in accordance with
the
provisions of this subsection;
(9) Establish and implement the benchmarks and performance
indicators necessary to measure institutional progress:
(A) In meeting state goals, objectives and priorities
established in articles one and one-d of this chapter;
(B) In carrying out institutional missions; and
(C) In meeting the essential conditions established in article three-c of this chapter;
(10) Collect and analyze data relating to the performance of
community and technical colleges in every region of West Virginia
and report periodically or as directed to the Legislative Oversight
Commission on Education Accountability on the progress in meeting
the goals and objectives established in articles one and one-d of
this chapter.
Additionally, the council shall report annually during the
January interim
meetings meeting period on a date and at a time and
location to be determined by the President of the Senate and the
Speaker of the House of Delegates.
The annual report shall address at least the following:
(A) The performance of the community and technical college
network during the previous fiscal year, including, but not limited
to, progress in meeting
goals stated in the compacts and progress
of the institutions and the network as a whole in meeting the
goals,
and objectives
and priorities established in articles one
and one-d of this chapter
and in the council's master plan and
institution compacts;
(B) The priorities
established for capital investment needs
pursuant to subdivision (11) of this subsection of the council for
new operating and capital investments and the justification for
such the priority; and
(C) Recommendations of the council for statutory changes necessary or expedient to achieve established state goals and
objectives;
(11) In accordance with article nineteen of this chapter:
(11) (A) Establish a formal process for identifying needs for
capital investments and for determining priorities for these
investments needs for consideration by the Governor and the
Legislature as part of the appropriation request process;
(B) Ensure that the governing boards adhere to the capital
construction and maintenance provisions of article nineteen of this
chapter; and
(C) Notwithstanding any other provision of this code to the
contrary, sell, lease, convey or otherwise dispose of all or part
of any real property that it owns.
Notwithstanding the language in subdivision eleven, subsection
a, section four, article one-b of this chapter, the Commission is
not a part of the process for identifying needs for capital
investments for the statewide network of independently accredited
community and technical colleges
(12) Draw upon the expertise available within
the Governor's
Workforce Investment Office Workforce West Virginia and the West
Virginia Development Office as a resource in the area of workforce
development and training;
(13) Acquire legal services that are considered necessary,
including representation of the council, its institutions, employees and officers before any court or administrative body,
notwithstanding any other provision of this code to the contrary.
The counsel may be employed either on a salaried basis or on a
reasonable fee basis. In addition, the council may, but is not
required to, call upon the Attorney General for legal assistance
and representation as provided by law;
(14) Employ a chancellor for community and technical college
education pursuant to section three of this article;
(15) Employ other staff as necessary and appropriate to carry
out the duties and responsibilities of the council consistent with
the provisions of section two, article four of this chapter;
(16) Employ other staff as necessary and appropriate to carry
out the duties and responsibilities of the council who are employed
solely by the council;
(17) Provide suitable offices
in Charleston for the chancellor
and other staff;
(18) Approve the total compensation package from all sources
for presidents of community and technical colleges, as proposed by
the governing boards. The governing boards
must shall obtain
approval from the council of the total compensation package both
when presidents are employed initially and subsequently when any
change is made in the amount of the total compensation package;
(19) Establish and implement policies and procedures to ensure
that
students a student may transfer and apply toward the requirements for a degree the maximum number of credits earned at
any regionally accredited in-state or out-of-state higher education
institution with as few requirements to repeat courses or to incur
additional costs as is consistent with sound academic policy;
(20) Establish and implement policies and programs, jointly
with the community and technical colleges, through which
students
who have a student who has gained knowledge and skills through
employment, participation in education and training at vocational
schools or other education institutions, or Internet-based
education programs, may demonstrate by competency-based assessment
that they have the necessary knowledge and skills to be granted
academic credit or advanced placement standing toward the
requirements of an
associate associate's degree or a bachelor's
degree at a state institution of higher education;
(21) Seek out and attend regional and national meetings and
forums on education and workforce development-related topics,
as
that council members consider critical for the performance of their
duties. The council shall keep abreast of national and regional
community and technical college education trends and policies to
aid members in developing the policies for this state that meet the
education goals and objectives established in articles one and
one-d of this chapter;
(22) Assess community and technical colleges for the payment
of expenses of the council or for the funding of statewide services, obligations or initiatives related specifically to the
provision of community and technical college education;
(23) Promulgate rules allocating reimbursement of
appropriations, if made available by the Legislature, to community
and technical colleges for qualifying noncapital expenditures
incurred in the provision of services to students with physical,
learning or severe sensory disabilities;
(24) Assume the prior authority of the commission in examining
and approving tuition and fee increase proposals submitted by
community and technical college governing boards as provided in
section one, article ten of this chapter.
(25) Develop and submit to the commission, a single
budget
appropriation request for community and technical college education
that reflects recommended appropriations for community and
technical colleges and that meets the following conditions:
(A) Incorporates the provisions of the financing rule mandated
by this section to measure and provide performance funding to
institutions
which that achieve or make significant progress toward
achieving established state
goals, objectives and priorities;
(B) Considers the progress of each institution toward meeting
the essential conditions set forth in section three, article three-
c of this chapter, including independent accreditation; and
(C) Considers the progress of each institution toward meeting
the goals, objectives and priorities established in article one-d of this chapter and its approved institutional compact.
(26) Administer and distribute the independently accredited
community and technical college development account;
(27) Establish a plan of strategic funding to strengthen
capacity for support and assure delivery of high quality community
and technical college education in all regions of the state;
(28) Foster coordination among all state-level, regional and
local entities providing post-secondary vocational education or
workforce development and coordinate all public institutions and
entities that have a community and technical college mission;
(29) Assume the principal responsibility for oversight of
those community and technical colleges seeking independent
accreditation and for holding governing boards accountable for
meeting the essential conditions pursuant to article three-c of
this chapter;
(30) Advise and consent in the appointment of the presidents
of the community and technical colleges pursuant to section six,
article one-b of this chapter. The role of the council in
approving a president is to assure through personal interview that
the person selected understands and is committed to achieving the
goals and objectives established in the institutional compact and
in articles one, one-d and three-c of this chapter;
(31) Provide a single, statewide link for current and
prospective employers whose needs extend beyond one locality;
(32) Provide a mechanism capable of serving two or more
institutions to facilitate joint problemsolving in areas including,
but not limited to, the following:
(A) Defining faculty roles and personnel policies;
(B) Delivering high-cost technical education programs across
the state;
(C) Providing one-stop service for workforce training to be
delivered by multiple institutions; and
(D) Providing opportunities for resource-sharing and
collaborative ventures;
(33) Provide support and technical assistance to develop,
coordinate and deliver effective and efficient community and
technical college education programs and services in all regions of
the state;
(34) Assist the community and technical colleges in
establishing and promoting links with business, industry and labor
in the geographic areas for which each community and technical
college is responsible;
(35) Develop alliances among the community and technical
colleges for resource sharing, joint development of courses and
courseware, and sharing of expertise and staff development;
(36) Serve aggressively as an advocate for development of a
seamless curriculum;
(37) Cooperate with all providers of education services in the state to remove barriers relating to a seamless system of public
and higher education and to transfer and articulation between and
among community and technical colleges, state colleges and
universities and public education, preschool through grade twelve;
(38) Encourage the most efficient use of available resources;
(39) Coordinate with the commission in informing public school
students, their parents and teachers of the academic preparation
that students need in order to be prepared adequately to succeed in
their selected fields of study and career plans, including
presentation of academic career fairs;
(40) Jointly with the commission, approve and implement a
uniform standard, as developed by the chancellors, to determine
which students shall be placed in remedial or developmental
courses. The standard shall be aligned with college admission
tests and assessment tools used in West Virginia and shall be
applied uniformly by the governing boards throughout the public
higher education system. The chancellors shall develop a clear,
concise explanation of the standard which the governing boards
shall communicate to the State Board of Education and the State
Superintendent of Schools;
(41) Develop and implement strategies and curriculum for
providing developmental education which shall be applied by any
state institution of higher education providing developmental
education.
(42) Develop a statewide system of community and technical
college programs and services in every region of West Virginia for
competency-based certification of knowledge and skills, including
a statewide competency-based associate degree program;
(43) Review and approve all institutional master plans for the
community and technical colleges pursuant to section four, article
two-a of this chapter;
(44) Propose rules for promulgation pursuant to subsection (b)
of this section and article three-a, chapter twenty-nine-a of this
code that are necessary or expedient for the effective and
efficient performance of community and technical colleges in the
state;
(45) In its sole discretion, transfer any rule under its
jurisdiction, other than a legislative rule, to the jurisdiction of
the governing boards,
who which may rescind, revise, alter or amend
any rule transferred pursuant to rules adopted by the council, and
provide technical assistance to the institutions under its
jurisdiction to aid them in promulgating rules;
(46) Develop for inclusion in the higher education report
card, as defined in section eight, article one-d of this chapter,
a separate section on community and technical colleges. This
section shall include, but is not limited to, evaluation of the
institutions based upon the benchmarks and indicators developed in
subdivision (9) of this subsection;
(47) Facilitate continuation of the Advantage Valley Community
College Network under the leadership and direction of Marshall
Community and Technical College;
(48) Initiate and facilitate creation of other regional
networks of affiliated community and technical colleges that the
council finds to be appropriate and in the best interests of the
citizens to be served;
(49) Develop with the State Board of Education plans for
secondary and post-secondary vocational-technical-occupational and
adult basic education, including, but not limited to, the
following:
(A) Policies to strengthen vocational-technical-occupational
and adult basic education; and
(B) Programs and methods to assist in the improvement,
modernization and expanded delivery of vocational-technical-
occupational and adult basic education programs;
(50) Distribute federal vocational education funding provided
under the Carl D. Perkins Vocational and Technical Education Act of
1998, PL 105-332, with an emphasis on distributing financial
assistance among secondary and post-secondary vocational-
technical-occupational and adult basic education programs to help
meet the public policy agenda.
In distributing funds the council shall use the following
guidelines:
(A) The State Board of Education shall continue to be the
fiscal agent for federal vocational education funding;
(B) The percentage split between the State Board of Education
and the council shall be determined by rule promulgated by the
council under
the provisions of article three-a, chapter twenty-
nine-a of this code;
The Council shall first obtain the approval
of the State Board of Education before proposing a rule
(51) Collaborate, cooperate and interact with all secondary
and post-secondary vocational-technical-occupational and adult
basic education programs in the state, including the programs
assisted under the federal Carl D. Perkins Vocational and Technical
Education Act of 1998, PL 105-332, and the Workforce Investment Act
of 1998, to promote the development of seamless curriculum and the
elimination of duplicative programs;
(52) Coordinate the delivery of vocational-technical
occupational and adult basic education in a manner designed to make
the most effective use of available public funds to increase
accessibility for students;
(53) Analyze and report to the State Board of Education on the
distribution of spending for vocational-technical-occupational and
adult basic education in the state and on the availability of
vocational-technical-occupational and adult basic education
activities and services within the state;
(54) Promote the delivery of vocational-technical-occupational education, adult basic education and community and technical
college education programs in the state
which that emphasize the
involvement of business, industry and labor organizations;
(55) Promote public participation in the provision of
vocational-technical-occupational education, adult basic education
and community and technical education at the local level,
emphasizing programs which involve the participation of local
employers and labor organizations;
(56) Promote equal access to quality vocational-technical-
occupational education, adult basic education and community and
technical college education programs to handicapped and
disadvantaged individuals, adults in need of training and
retraining, single parents, homemakers, participants in programs
designed to eliminate sexual bias and stereotyping and criminal
offenders serving in correctional institutions;
(57) Meet annually between the months of October and December
with the Advisory Committee of Community and Technical College
Presidents created pursuant to section eight of this article to
discuss those matters relating to community and technical college
education in which advisory committee members or the council may
have an interest;
(58) Accept and expend any gift, grant, contribution, bequest,
endowment or other money for the purposes of this article;
(59) Assume the powers set out in section nine of this article. The rules previously promulgated by the state College
System Board of Directors pursuant to that section and transferred
to the commission are hereby transferred to the council and shall
continue in effect until rescinded, revised, altered or amended by
the council;
(60) Pursuant to
the provisions of subsection (b) of this
section and article three-a, chapter twenty-nine-a of this code,
promulgate a uniform joint legislative rule with the commission for
the purpose of standardizing, as much as possible, the
administration of personnel matters among the institutions of
higher education;
(61) Determine when a joint rule among the governing boards of
the community and technical colleges is necessary or required by
law and, in those instances and in consultation with the governing
boards, promulgate the joint rule;
(62) Promulgate a joint rule with the Commission establishing
tuition and fee policy for all institutions of higher education.
The rule shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Any other policies the Commission and Council consider
appropriate;
(63) (62) In cooperation with the West Virginia Division of
Highways, study a method for increasing the signage signifying
community and technical college locations along the state
interstate highways, and report to the Legislative Oversight
Commission on Education Accountability regarding any
recommendations and required costs; and
(64) (63) Promulgate and implement a
policy rule jointly with
the commission whereby any course credit earned at a community and
technical college transfers for program credit at any other state
institution of higher education and is not limited to fulfilling a
general education requirement.
(d) In addition to the powers and duties listed in subsections
(a), (b) and (c) of this section, the council has the following
general powers and duties related to its role in developing,
articulating and overseeing the implementation of the public policy
agenda for community and technical colleges:
(1) Planning and policy leadership including a distinct and
visible role in setting the state's policy agenda for the delivery
of community and technical college education and in serving as an
agent of change;
(2) Policy analysis and research focused on issues affecting
the community and technical college network as a whole or a
geographical region
thereof of the network;
(3) Development and implementation of each community and technical college mission definition including use of incentive and
performance funds to influence institutional behavior in ways that
are consistent with achieving established state goals, objectives
and priorities;
(4) Academic program review and approval for the institutions
under its jurisdiction, including the use of institutional missions
as a template to judge the appropriateness of both new and existing
programs and the authority to implement needed changes;
(5) Development of budget and allocation of resources for
institutions delivering community and technical college education,
including reviewing and approving institutional operating and
capital budgets and distributing incentive and performance-based
funding;
(6) Acting as the agent to receive and disburse public funds
related to community and technical college education when a
governmental entity requires designation of a statewide higher
education agency for this purpose;
(7) Development, establishment and implementation of
information, assessment and internal accountability systems,
including maintenance of statewide data systems that facilitate
long-term planning and accurate measurement of strategic outcomes
and performance indicators for community and technical colleges;
(8) Jointly with the commission, development, establishment
and implementation of policies for licensing and oversight of both public and private degree-granting and nondegree-granting
institutions that provide post-secondary education courses or
programs;
(9) Development, implementation and oversight of statewide and
regionwide regional projects and initiatives related specifically
to providing community and technical college education such as
those using funds from federal categorical programs or those using
incentive and performance-based funding from any source; and
(10) Quality assurance that intersects with all other duties
of the council particularly in the areas of planning, policy
analysis, program review and approval, budgeting and information
and accountability systems.
(e) The council may withdraw specific powers of a governing
board under its jurisdiction for a period not to exceed two years
if the council makes a determination that any of the following
conditions exist:
(1) The governing board has failed for two consecutive years
to develop an institutional compact as required in section seven,
article one-d of this chapter;
(2) The council has received information, substantiated by
independent audit, of significant mismanagement or failure to carry
out the powers and duties of the board of governors according to
state law; or
(3) Other circumstances which, in the view of the council, severely limit the capacity of the board of governors to carry out
its duties and responsibilities.
The period of withdrawal of specific powers may not exceed two
years during which time the council
is authorized to may take steps
necessary to reestablish the conditions for restoration of sound,
stable and responsible institutional governance.
(f) In addition to the powers and duties provided
for in
subsections (a), (b), (c) and (d) of this section and any others
assigned to it by law, the council has those powers and duties
necessary or expedient to accomplish the purposes of this article.
and
(g) When the council and commission, each, is required to
consent, cooperate, collaborate or provide input into the actions
of the other the following conditions apply:
(1) The body acting first shall convey its decision in the
matter to the other body with a request for concurrence in the
action;
(2) The commission or the council, as the receiving body,
shall place the proposal on its agenda and shall take final action
within sixty days of the date when the request for concurrence is
received; and
(3) If the receiving body fails to take final action within
sixty days, the original proposal stands and is binding on both the
commission and the council.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-6.
Regulation of parking, speed flow of traffic on campus
roads and driveways; civil and criminal penalties;
disposition of revenue.
(a) The governing boards are hereby authorized to construct,
maintain and operate automobile parking facilities or areas upon
any premises owned or leased at any state institution of higher
education under their jurisdiction for use by students, faculty,
staff and visitors. The governing boards may charge fees for use
of the parking facilities or areas under their control. All moneys
collected for the use of the parking facilities or areas shall be
paid to the credit of the state institution of higher education at
which the fees were charged into a special fund in the State
Treasury. The moneys in the fund are used first to pay the cost of
maintaining and operating the parking facilities or areas.
Any excess not needed for this purpose may be used for the
acquisition of property by lease or purchase and the construction
thereon of additional parking facilities or areas. Any money in
the fund not needed immediately for the acquisition, construction,
maintenance or operation of the parking facilities or areas may be
temporarily invested by the governing boards with the West Virginia
Investment Management Board to the credit of the institution by
which the fees were charged.
(b) (a) Notwithstanding any other motor vehicle or traffic law or regulation to the contrary, a governing board may regulate and
control at any state institution under its jurisdiction the speed,
flow and parking of vehicles on campus roads, driveways and parking
facilities or areas.
(1) Rules for this purpose shall be promulgated by the
governing boards in the manner prescribed in section six, article
one of this chapter; and
(2) When so promulgated, the rules have the force and effect
of law.
(3) The governing board shall post in a conspicuous location
in each parking facility or area, a summary of the rules governing
the use of the facility or area including, but not limited to, the
availability of temporary parking permits and where these permits
may be obtained and the penalties which may be imposed for
violations of the rules.
(4) The governing board shall post in a conspicuous location
along each campus road and driveway notice signs pertaining to the
speed of vehicles, spaces available for parking, directional flow
of traffic and penalties which may be imposed for violations of the
rules.
(c) (b) Any person parking or operating a vehicle in violation
of the rules shall be issued a citation:
(1) Describing the offense charged;
and
(2) Ordering an appearance:
(A) Within ten days, excluding Saturdays, Sundays and holidays
observed by the state institution, before a designated official of
the institution;
(B) Before a magistrate located in the county if the person
cited fails to appear within the ten days; or
(C) Before the judge of the municipal court, if the state
institution is located within a municipality having such an
official and the person cited fails to appear within the ten days.
(d) (c) The designated official of the state institution has
exclusive jurisdiction of the offense during the ten-day period
until the
citations are citation is forwarded to a magistrate. For
the state institutions of higher education under the jurisdiction
of the governing board of Marshall University and for the state
institution of higher education known as West Virginia University
only, the designated official of the institution has exclusive
jurisdiction of the offense for thirty days following the
violation. After thirty days the official
forwards shall forward
the citation to a magistrate. Any person
so cited may plead no
contest to the offense and, by so pleading, is subject to a civil
penalty to be determined uniformly by the designated official and
commensurate with the severity of the offense. For the state
institutions under the jurisdiction of the governing board of
Marshall University and for the state institution of higher
education known as West Virginia University only, the amount imposed may not exceed $20. For all other institutions the amount
may not exceed $10, for each offense as partial reimbursement to
the state institution of higher education for the cost of
regulating traffic and parking. In the case of the state
institutions under the jurisdiction of the governing board of
Marshall University and in the case of the state institution of
higher education known as West Virginia University only, the
designated official shall determine the penalty uniformly,
commensurate with the severity of the offense, and may apply
academic restrictions in lieu of requiring a student to appear in
court and receive penalties otherwise provided in this section.
Moneys derived from civil penalties imposed
herein in this
subsection shall be deposited in the
special fund in the State
Treasury created by this section and credited to the state
institution to which the penalty was paid institution's auxiliary
and auxiliary capital fees fund.
(e) (d) Upon expiration of the ten-day or thirty-day period,
as applicable, or upon a pleading of not guilty before the
designated official of the state institution within the applicable
period, the magistrate or judge of the municipal court has
jurisdiction of the offense. Any person cited under
the provisions
of this section, upon a finding of guilty by the magistrate or
municipal judge, is subject to a fine for each offense by the state
institutions under the jurisdiction of the governing board of Marshall University and for the state institution of higher
education known as West Virginia University only, of up to $40, and
at all other state institutions not less than $10 nor more than
$20, the amount to be commensurate with the severity of the
offense.
(f) (e) Each designated official of a state institution
presiding over a case under
the provisions of this section shall
keep a record of every citation which alleges a violation of
such
the provisions, or the rules promulgated in accordance
therewith
with this section, and shall keep a record of every official action
in reference
thereto to the citation including, but not limited to,
a record of every plea of no contest, conviction or acquittal, of
the offense charged, and the amount of the fine or civil penalty
resulting from each citation.
(g) (f) Whenever a vehicle is parked on any state institution
campus road, driveway or parking facility or area in a manner which
violates posted rules and substantially impedes the flow of traffic
or endangers the health and safety,
in addition to issuing a
citation and any procedures set forth in this section, the
institution may
in addition to the issuing of a citation and
subsequent procedures set forth herein, remove the vehicle, by
towing or otherwise, to an area owned by the institution or areas
designated for this purpose. The vehicle, having been towed to the
designated area or areas, may be rendered immovable by use of locking wheel blocks or other device not damaging to the vehicle.
The state institution of higher education shall maintain any
vehicle
so towed in the same condition as it was immediately prior
to being towed, but
shall is not
be liable for any damage to a
vehicle towed to, or kept in, a designated area pursuant to
the
provisions of this section. The state institution of higher
education shall pay for the cost of removing the vehicle and
shall
have has a right to reimbursement from the owner for this cost and
for the reasonable cost of keeping the vehicle in the designated
area. Until payment of these costs, the state institution of
higher education may retain possession of the vehicle and the
institution shall have a lien on the vehicle for the amount due.
The state institution of higher education may enforce this lien in
the manner provided in section fourteen, article eleven, chapter
thirty-eight of this code for the enforcement of other liens. For
the state institutions of higher education under the jurisdiction
of the governing board of Marshall University and for the state
institution of higher education known as West Virginia University
only,
the provisions of this subsection also apply when a vehicle
is subject to three or more unpaid citations.
(h) (g) If, at any time, Marshall Community and Technical
College ceases to share a physical campus location with Marshall
University, it may not be included as an institution under the
jurisdiction of the governing board of Marshall University for the purposes of subsections
(a),(d),(e) and (g) (c), (d) and (f) of
this section.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-4. Purchase or acquisition of materials, supplies,
equipment, services and printing.
(a) The council, commission and each governing board
through
the Vice Chancellor for Administration shall purchase or acquire
all materials, supplies, equipment, services and printing required
for that governing board or the council or commission, as
appropriate, and the state institutions of higher education under
their jurisdiction, except the governing boards of Marshall
University and West Virginia University, respectively, are subject
to
the provisions of subsection (d) of this section.
(b) The commission and council jointly shall adopt rules
governing and controlling acquisitions and purchases in accordance
with
the provisions of this section. The rules shall
assure that
the Council, Commission and governing boards ensure that the
following procedures are followed:
(1)
Do not preclude any No person
is precluded from
participating and making sales thereof to the
council, commission
or governing board
or to the Council or Commission except as
otherwise provided in section five of this article.
Provision of
consultant Providing consulting services such as strategic planning
services does not preclude or inhibit the governing boards, council or commission from considering
any a qualified bid or response for
delivery of a product or a commodity
because the consultant
services are rendered from the individual providing the services;
(2)
Establish and prescribe Specifications
in all proper cases
are established and prescribed for materials, supplies, equipment,
services and printing to be purchased;
(3)
Adopt and prescribe such Purchase order, requisition or
other forms as may be required
are adopted and prescribed;
(4)
Negotiate for and make Purchases and acquisitions in such
quantities, at such times and under contract,
are negotiated for
and made in the open market or through other accepted methods of
governmental purchasing as may be practicable in accordance with
general law;
(5)
Advertise for Bids
are advertised on all purchases
exceeding $25,000,
to purchase and made by means of sealed
or
electronically-submitted bids and competitive bidding or
to effect
advantageous purchases
effected through other accepted governmental
methods and practices.
Competitive bids are not required for
purchases of $25,000 or less.
(6)
Post Notices
of all for acquisitions and purchases for
which competitive bids are being solicited
are posted in the
purchasing office of the specified institution involved in the
purchase, at least two weeks prior to making
such the purchases.
and The rules shall ensure that the notice is available to the public during business hours;
(7)
Provide for purchasing Purchases are made in the open
market;
(8)
Provide for vendor notification Vendors are notified of
bid solicitation and emergency purchasing;
and
(9) Provide that competitive bids are not required for
purchases of $25,000 or less; and
(10) Provide for not (9) No fewer than three bids
where are
obtained when bidding is required,
except if fewer than three bids
are submitted, an award may be made from among those received.
(c) When a state institution of higher education submits a
contract, agreement or other document to the Attorney General for
approval as to form as required by this chapter the following
conditions apply:
(1) "Form" means compliance with the Constitution and statutes
of the State of West Virginia;
(2) The Attorney General does not have the authority to reject
a contract, agreement or other document based on the substantive
provisions
therein in the contract, agreement or document or any
extrinsic matter
so as long as it complies with the Constitution
and statutes of this state;
(3) Within fifteen days of receipt, the Attorney General shall
notify the appropriate state institution of higher education in
writing that the contract, agreement or other document is approved or disapproved as to form. If the contract, agreement or other
document is disapproved as to form, the notice of disapproval shall
identify each defect that supports the disapproval
; and
(4) If the state institution elects to challenge the
disapproval by filing a writ of mandamus or other action and
prevails, then the Attorney General shall pay reasonable attorney
fees and costs incurred.
(d) Pursuant to this subsection, the governing boards of
Marshall University and West Virginia University, respectively, may
carry out the following actions:
(1) Purchase or acquire all materials, supplies, equipment,
services and printing required for the governing board without
approval from the commission or the Vice Chancellor for
Administration and may issue checks in advance to cover postage as
provided in subsection (f) of this section;
(2) Make purchases from cooperative buying groups, consortia,
the federal government or from federal government contracts if the
materials, supplies, services, equipment or printing to be
purchased is available from these groups and if this would be the
most financially advantageous manner of making the purchase;
(3) Select and acquire by contract or lease all grounds,
buildings, office space or other space, and capital improvements,
including equipment,
if the rental
of which is necessarily required
by the governing board; and
(4) Use purchase cards under terms approved for the
commission, the council and governing boards of state institutions
of higher education and participate in any expanded program of use
as provided in subsection
(w) (u) of this section.
(e) The governing boards shall adopt sufficient accounting and
auditing procedures and promulgate and adopt appropriate rules
subject to
the provisions of section six, article one of this
chapter to govern and control acquisitions, purchases, leases and
other instruments for grounds, buildings, office or other space,
and capital improvements, including equipment, or lease-purchase
agreements.
(f) The council, commission or each governing board
through
the Vice Chancellor for Administration may issue a check in advance
to a company supplying postage meters for postage used by that
board, the council or commission and by the state institutions of
higher education under their jurisdiction.
(g) When a purchase is to be made by bid, any or all bids may
be rejected. However, all purchases based on advertised bid
requests shall be awarded to the lowest responsible bidder taking
into consideration the qualities of the articles to be supplied,
their conformity with specifications, their suitability to the
requirements of the governing boards, council or commission and
delivery terms. The preference for resident vendors as provided in
section thirty-seven, article three, chapter five-a of this code
apply applies to the competitive bids made pursuant to this
section.
(h) The governing boards, council and commission shall
maintain a purchase file, which shall be a public record and open
for public inspection.
(1) After the award of the order or contract, the governing
boards, council and commission shall indicate upon the successful
bid
the following information:
(A) That it was Designation as the successful bid;
and shall
further indicate
(B) Why The reason any bids
are were rejected; and
(C) The reason for rejection, if the mathematical low vendor
is was not awarded the order or contract.
the reason therefor
(2) A record in the purchase file may not be destroyed without
the written consent of the Legislative Auditor. Those files in
which the original documentation has been held for at least one
year and in which the original documents have been reproduced and
archived on microfilm or other equivalent method of duplication may
be destroyed without the written consent of the Legislative
Auditor.
(3) All files, no matter the storage method, shall be open for
inspection by the Legislative Auditor upon request.
(i) The commission and council, also jointly, shall
adopt
promulgate rules to prescribe qualifications to be met by any person who is to be employed as a buyer pursuant to this section.
These rules shall require that a person may not be employed as a
buyer unless that person, at the time of employment
either is has
one of the following qualifications:
(1)
Is a graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any
unit of government or for any business, commercial or industrial
enterprise.
(j) Any person making purchases and acquisitions pursuant to
this section shall execute a bond in the penalty of $50,000,
payable to the State of West Virginia, with a corporate bonding or
surety company authorized to do business in this state as surety
thereon, in form prescribed by the Attorney General and conditioned
upon the faithful performance of all duties in accordance with this
section and sections five through eight, inclusive, of this article
and the rules of the governing board and the council and
commission. In lieu of separate bonds for
such these buyers, a
blanket surety bond may be obtained.
Any such The bond shall be
filed with the Secretary of State
and the cost of
any such the bond
shall be paid from funds appropriated to the applicable governing
board or the council or commission.
(k) All purchases and acquisitions shall be made in
consideration and within limits of available appropriations and
funds and in accordance with applicable provisions of article two, chapter five-a of this code relating to expenditure schedules and
quarterly allotments of funds. Notwithstanding any other provision
of this code to the contrary, only those purchases exceeding the
dollar amount for competitive sealed bids in this section are
required to be encumbered and they may be entered into the state's
centralized accounting system by the staff of the commission,
council or governing boards to satisfy the requirements of article
two, chapter five-a of this code
and specifically sections twenty-
six, twenty-seven and twenty-eight of said article to determine
whether the amount of the purchase is within the
Commission's,
Council's or governing board's quarterly allotment
of the
commission, council or governing board, is in accordance with the
approved expenditure schedule and otherwise conforms to
the
provisions of said the article.
(l) The governing boards, council and commission may make
requisitions upon
the State Auditor for a sum to be known as an
advance allowance account, not to exceed five percent of the total
of the appropriations for the governing board, council or
commission, and
the State Auditor shall draw a warrant upon the
Treasurer for
such those accounts. All advance allowance accounts
shall be accounted for by the applicable governing board or the
council or commission once every thirty days or more often if
required by the State Auditor.
(m) Contracts entered into pursuant to this section shall be signed by the applicable governing board or the council or
commission in the name of the state and shall be approved as to
form by the Attorney General. A contract which requires approval
as to form by the Attorney General is considered approved if the
Attorney General has not responded within fifteen days of
presentation of the contract. A contract or a change order for
that contract and notwithstanding any other provision of this code
to the contrary, associated documents such as performance and
labor/material payments, bonds and certificates of insurance which
use terms and conditions or standardized forms previously approved
by the Attorney General and do not make substantive changes in the
terms and conditions of the contract do not require approval as to
form by the Attorney General. The Attorney General shall make a
list of those changes which he or she considers to be substantive
and the list, and any changes
thereto to the list, shall be
published in the State Register. A contract that exceeds the
dollar amount requiring competitive sealed bids in this section
shall be filed with the State Auditor. If requested to do so, the
governing boards, council or commission shall make all contracts
available for inspection by the State Auditor. The governing
board, council or commission, as appropriate, shall prescribe the
amount of deposit or bond to be submitted with a bid or contract,
if any, and the amount of deposit or bond to be given for the
faithful performance of a contract.
(n) If the governing board, council or commission purchases or
contracts for materials, supplies, equipment, services and printing
contrary to
the provisions of sections four through seven of this
article or the rules pursuant
thereto, such to this article, the
purchase or contract is void and of no effect.
(o)
Any A governing board or the council or commission, as
appropriate, may request the director of
purchases purchasing to
make available
from time to time the facilities and services of
that department to the governing boards, council or commission in
the purchase and acquisition of materials, supplies, equipment,
services and printing.
and The director of
purchases purchasing
shall cooperate with that governing board, council or commission,
as appropriate, in all such purchases and acquisitions upon
such
that request.
(p) Each governing board or the council or commission, as
appropriate,
shall may permit private institutions of higher
education to join as purchasers on purchase contracts for
materials, supplies, services and equipment entered into by that
governing board or the council or commission.
Any A private
school
institution desiring to join as
purchasers purchaser on
such
purchase contracts shall file with that governing board or the
council or commission,
as appropriate, an affidavit signed by the
president
or designee of the
private institution
of higher
education or a designee requesting that it be authorized to join as purchaser on purchase contracts of that governing board or the
council or commission, as appropriate. The private
school
institution shall agree that it is bound by such terms and
conditions as that governing board or the council or commission may
prescribe and that it will be responsible for payment directly to
the vendor under each purchase contract.
(q) Notwithstanding any other provision of this code to the
contrary, the governing boards, council and commission, as
appropriate, may make purchases from cooperative buying groups,
consortia, the federal government or from federal government
contracts if the materials, supplies, services, equipment or
printing to be purchased is available from
cooperative buying
groups, consortia, the federal government or from a federal
contract that source, and purchasing from
the cooperative buying
groups, consortia, federal government or from a federal government
contract that source would be the most financially advantageous
manner of making the purchase.
(r) An independent performance audit of all purchasing
functions and duties which are performed at any state institution
of higher education, except Marshall University and West Virginia
University, shall be performed each fiscal year. The Joint
Committee on Government and Finance shall conduct the performance
audit and the governing boards, council and commission, as
appropriate, are responsible for paying the cost of the audit from funds appropriated to the governing boards, council or commission.
(1) The governing boards of Marshall University and West
Virginia University, respectively, shall provide for independent
performance audits of all purchasing functions and duties on their
campuses at least once in each three-year period.
(2) Each audit shall be inclusive of the entire time period
that has elapsed since the date of the preceding audit.
(3) Copies of all appropriate documents relating to any audit
performed by the governing boards of Marshall University and West
Virginia University shall be furnished to the Joint Committee on
Government and Finance and the Legislative Oversight Commission on
Education Accountability within thirty days of the date the audit
report is completed.
(s) The governing boards shall require each institution under
their respective jurisdictions to notify and inform every vendor
doing business with that institution of
the provisions of section
fifty-four, article three, chapter five-a of this code, also known
as the Prompt Pay Act of 1990.
(t) Consultant services, such as strategic planning services,
do not preclude or inhibit the governing boards, council or
commission from considering any qualified bid or response for
delivery of a product or a commodity because of the rendering of
those consultant services.
(u) The Commission or Council may enter into lease-purchase agreements for capital improvements, including equipment, on behalf
of or for the benefit of state institutions of higher education,
the Commission or Council. After the Commission or Council, as
appropriate, has granted approval for lease-purchase agreements by
the governing boards, a governing board may enter into lease-
purchase agreements for capital improvements, including equipment,
except the governing boards of Marshall University and West
Virginia University may enter into lease-purchase agreements for
the state institutions of higher education known as Marshall
University and West Virginia University without seeking the
approval of the Commission or the Council. Any lease-purchase
agreement so entered shall constitute a special obligation of the
State of West Virginia. The obligation under a lease-purchase
agreement so entered may be from any funds legally available to the
Commission, Council or the institution and must be cancelable at
the option of the Commission, Council or the governing board or
institution at the end of any fiscal year. The obligation, any
assignment or securitization thereof, never constitutes an
indebtedness of the State of West Virginia or any department,
agency or political subdivision thereof, within the meaning of any
Constitutional provision or statutory limitation, and may not be a
charge against the general credit or taxing powers of the state or
any political subdivision thereof. Such facts shall be plainly
stated in any lease-purchase agreement. Further, the lease-purchase agreement shall prohibit assignment or securitization
without consent of the lessee and the approval of the agreement as
to form by the Attorney General. of West Virginia Proposals for
any agreement shall be requested in accordance with the
requirements of this section and any rules or guidelines of the
Commission and Council. In addition, any lease-purchase agreement
which exceeds one hundred thousand dollars total shall be approved
as to form by the Attorney General. The interest component of any
lease-purchase obligation is exempt from all taxation of the State
of West Virginia, except inheritance, estate and transfer taxes.
It is the intent of the Legislature that if the requirements set
forth in the Internal Revenue Code of 1986, as amended, and any
regulations promulgated pursuant thereto are met, the interest
component of any lease-purchase obligation also is exempt from the
gross income of the recipient for purposes of federal income
taxation and may be designated by the governing board or the
president of the institution as a bank-qualified obligation.
(v) Notwithstanding any other provision of this code to the
contrary, the Commission, Council and governing boards have the
authority, in the name of the state, to lease, or offer to lease,
as lessee, any grounds, buildings, office or other space in
accordance with this paragraph and as provided below:
(1) The Commission, Council and governing boards have sole
authority to select and to acquire by contract or lease all grounds, buildings, office space or other space, the rental of
which is necessarily required by the Commission, Council or
governing boards for the institutions under their jurisdiction.
For state institutions of higher education other than Marshall
University and West Virginia University, the chief executive
officer of the Commission, Council or an institution shall certify
the following:
(A) That the grounds, buildings, office space or other space
requested is necessarily required for the proper function of the
Commission, Council or institution;
(B) That the Commission, Council or institution will be
responsible for all rent and other necessary payments in connection
with the contract or lease; and
(C) That satisfactory grounds, buildings, office space or
other space is not available on grounds and in buildings currently
owned or leased by the Commission, Council or the institution.
Before executing any rental contract or lease, the Commission,
Council or a governing board shall determine the fair rental value
for the rental of the requested grounds, buildings, office space or
other space, in the condition in which they exist, and shall
contract for or lease the premises at a price not to exceed the
fair rental value.
(2) The Commission, Council and governing boards are
authorized to enter into long-term agreements for buildings, land and space for periods longer than one fiscal year but not to exceed
forty years. Any purchase of real estate, any lease-purchase
agreement and any construction of new buildings or other
acquisition of buildings, office space or grounds resulting
therefrom, pursuant to the provisions of this subsection shall be
presented by the Commission or Council, as appropriate, to the
Joint Committee on Government and Finance for prior review. Any
such lease shall contain, in substance, all the following
provisions:
(A) That the Commission, Council or governing board, as
lessee, has the right to cancel the lease without further
obligation on the part of the lessee upon giving thirty days'
written notice to the lessor at least thirty days prior to the last
day of the succeeding month;
(B) That the lease is considered canceled without further
obligation on the part of the lessee if the Legislature or the
federal government fails to appropriate sufficient funds therefor
or otherwise acts to impair the lease or cause it to be canceled;
and
(C) That the lease is considered renewed for each ensuing
fiscal year during the term of the lease unless it is canceled by
the Commission, Council or governing board before the end of the
then-current fiscal year.
(3) The Commission, Council or institution which is granted any grounds, buildings, office space or other space leased in
accordance with this section may not order or make permanent
changes of any type thereto, unless the Commission, Council or
governing board, as appropriate, has first determined that the
change is necessary for the proper, efficient and economically
sound operation of the institution. For purposes of this section,
a "permanent change" means any addition, alteration, improvement,
remodeling, repair or other change involving the expenditure of
state funds for the installation of any tangible thing which cannot
be economically removed from the grounds, buildings, office space
or other space when vacated by the institution.
(4) Leases and other instruments for grounds, buildings,
office or other space, once approved by the Commission, Council or
governing board, may be signed by the chief executive officer of
the Commission, Council or institution. Any lease or instrument
exceeding one hundred thousand dollars annually shall be approved
as to form by the Attorney General. A lease or other instrument
for grounds, buildings, office or other space that contains a term,
including any options, of more than six months for its fulfillment
shall be filed with the State Auditor.
(5) The Commission and Council jointly may promulgate rules
they consider necessary to carry out the provisions of this
section. The governing boards of Marshall University and West
Virginia University shall promulgate rules pursuant to section six, article one of this chapter to implement the provisions of this
section.
(w) (u) Purchasing card use may be expanded by the council,
commission and state institutions of higher education pursuant to
the provisions of this subsection.
(1) The council and commission jointly shall establish
procedures to be implemented by the council, commission and any
institution under their respective jurisdictions using purchasing
cards. The procedures shall ensure that each
maintains meets the
following conditions:
(A) Appropriate use of the purchasing card system;
(B) Full compliance with
the provisions of article three,
chapter twelve of this code relating to the purchasing card
program; and
(C) Sufficient accounting and auditing procedures for all
purchasing card transactions.
(2) By the first day of November, two thousand four, the
Council and Commission jointly shall present the procedures to the
Legislative Oversight Commission on Education Accountability for
its adoption.
(3) (2) Notwithstanding any other provision of this code to
the contrary,
if the Legislative Oversight Commission on Education
Accountability adopts the procedures the council, commission and
any institution authorized pursuant to subdivision
(4) (3) of this subsection may use purchasing cards for
the following purposes:
(A)
Payment of travel expenses directly related to the job
duties of the traveling employee, including,
but not limited to,
fuel and food; and
(B)
Payment of any routine, regularly scheduled payment,
including, but not limited to, utility payments and real property
rental fees.
The Council, Commission and each institution,
annually by June 30, shall provide to the state Purchasing Division
a list of all goods or services for which payment was made pursuant
to this provision during that fiscal year.
(4) (3) The commission and council each shall evaluate the
capacity of each institution under its jurisdiction for complying
with the procedures established pursuant to subdivision
(3) (2) of
this subsection. The commission and council each shall authorize
expanded use of purchasing cards pursuant to
said that subdivision
for any
such institution it determines has the capacity to comply.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-8.
Collection; disposition and use of capital and auxiliary
capital fees; creation of special capital and
auxiliary capital improvements funds; revenue bonds.
(a) This section and any rules adopted by the commission,
council or both, in accordance with this section and article three-
a, chapter twenty-nine-a of this code, govern
s the collection, disposition and use of the capital and auxiliary capital fees
authorized by section one of this article. The statutory
provisions governing collection and disposition of capital funds in
place prior to the enactment of this section remain in effect.
(b)
Fees for full-time students. -- The governing boards shall
fix capital and auxiliary capital fees for full-time students at
each state institution of higher education per semester. For
institutions under its jurisdiction, a governing board may fix the
fees at higher rates for students who are not residents of this
state.
(c)
Fees for part-time students. -- For all part-time students
and for all summer school students, the governing boards shall
impose and collect the fees in proportion to, but not exceeding,
the fees paid by full-time students. Refunds of the fees may be
made in the same manner as any other fee collected at state
institutions of higher education.
(d) There is continued in the State Treasury a special capital
improvements fund and special auxiliary capital improvements fund
for each state institution of higher education and the commission
into which shall be paid all proceeds, respectively, of
the
following:
(1) The capital and auxiliary capital fees collected from
students at all state institutions of higher education pursuant to
this section; and
(2) The fees collected from the students pursuant to section
one of this article. The fees shall be expended by the commission
and governing boards for the payment of the principal of or
interest on any revenue bonds issued by the board of regents or the
succeeding governing boards for which the fees were pledged prior
to the enactment of this section.
(e) The governing boards may make expenditures from any of the
special capital improvements funds or special auxiliary capital
improvement funds established in this section to finance
or fund on
a cash basis, in whole or in part,
together in combination with any
federal, state or other grants or contributions, for any one or
more of the following projects:
(1) The acquisition of land or any rights or interest in land;
(2) The construction or acquisition of new buildings;
(3) The renovation or construction of additions to existing
buildings;
(4) The acquisition of furnishings and equipment for the
buildings; and
(5) The construction or acquisition of any other capital
improvements or capital education facilities at the state
institutions of higher education, including any roads, utilities or
other properties, real or personal, or for other purposes
necessary, appurtenant or incidental to the construction,
acquisition, financing and placing in operation of the buildings, capital improvements or capital education facilities, including
student unions, dormitories, housing facilities, food service
facilities, motor vehicle parking facilities and athletic
facilities.
(f)
The governing boards, in their discretion, may use the
moneys in the special capital improvements funds and special
auxiliary improvement funds to finance the costs of the purposes
set forth in this section on a cash basis. The commission, when
singly or jointly requested by the
council or governing boards,
periodically may issue revenue bonds of the state as provided in
this section to finance all or part of the purposes and pledge all
or any part of the moneys in
such the special funds for the payment
of the principal of and interest on the revenue bonds, and for
reserves for the revenue bonds. Any pledge of the special funds
for the revenue bonds shall be a prior and superior charge on the
special funds over the use of any of the moneys in the funds to pay
for the cost of any of the purposes on a cash basis. Any
expenditures from the special funds, other than for the retirement
of revenue bonds, may be made by the commission or governing boards
only to meet the cost of a predetermined capital improvements
program for one or more of the state institutions of higher
education, in the order of priority agreed upon by the governing
board or boards and the commission and for which the aggregate
revenue collections projected are presented to the Governor for inclusion in the annual budget bill, and are approved by the
Legislature for expenditure.
Any expenditure made pursuant to
subsection (e) of this section shall be part of the ten-year campus
development plan approved by the institutional governing board
pursuant to section three, article nineteen of this chapter.
(g) The revenue bonds periodically may be authorized and
issued by the commission or governing boards to finance, in whole
or in part, the purposes provided in this section in an aggregate
principal amount not exceeding the amount which the commission
determines can be paid as to both principal and interest and
reasonable margins for a reserve therefor from the moneys in the
special funds.
(h) The issuance of the revenue bonds shall be authorized by
a resolution adopted by the governing board receiving the proceeds
and the commission
, and the revenue bonds shall bear the date or
dates; mature at such time or times not exceeding forty years from
their respective dates; be in such form either coupon or
registered, with such exchangeability and interchangeability
privileges; be payable in such medium of payment and at such place
or places, within or without the state; be subject to such terms of
prior redemption at such prices not exceeding one hundred five per
centum of the principal amount thereof; and
shall have the other
terms and provisions determined by the governing board receiving
the proceeds and
by the commission. The revenue bonds shall be signed by the Governor and by the chancellor of the commission or
the chair of the governing boards authorizing the issuance
thereof
of the revenue bonds, under the Great Seal of the State, attested
by the Secretary of State, and the coupons attached to the revenue
bonds shall bear the facsimile signature of the chancellor of the
commission or the chair of the appropriate governing boards. The
revenue bonds shall be sold in the manner the commission or
governing board determines is
for in the best interests of the
state.
(i) The commission or governing boards may enter into trust
agreements with banks or trust companies, within or without the
state, and in the trust agreements or the resolutions authorizing
the issuance of the bonds may enter into valid and legally binding
covenants with the holders of the revenue bonds as to the custody,
safeguarding and disposition of the proceeds of the revenue bonds,
the moneys in the special funds, sinking funds, reserve funds or
any other moneys or funds; as to the rank and priority, if any, of
different issues of revenue bonds by the commission or governing
boards under
the provisions of this section; as to the maintenance
or revision of the amounts of the fees; as to the extent to which
swap agreements, as defined in subsection (h), section two, article
two-g, chapter thirteen of this code shall be used in connection
with the revenue bonds, including such provisions as payment, term,
security, default and remedy provisions as the commission
shall consider considers necessary or desirable, if any, under which the
fees may be reduced; and as to any other matters or provisions
which are considered necessary and advisable by the commission or
governing boards in the best interests of the state and to enhance
the marketability of the revenue bonds.
(j) After the issuance of any revenue bonds, the fees at the
state institutions of higher education pledged to the payment
thereof of the revenue bonds may not be reduced as long as any of
the revenue bonds are outstanding and unpaid except under
such the
terms, provisions and conditions
as shall be contained in the
resolution, trust agreement or other proceedings under which the
revenue bonds were issued. The revenue bonds are and constitute
negotiable instruments under the Uniform Commercial Code of this
state; together with the interest thereon, be exempt from all
taxation by the State of West Virginia, or by any county, school
district, municipality or political subdivision thereof; and the
revenue bonds may not be considered to be obligations or debts of
the state and the credit or taxing power of the state may not be
pledged therefor, but the revenue bonds shall be payable only from
the revenue pledged therefor as provided in this section.
(k) Additional revenue bonds may be issued by the commission
or governing boards pursuant to this section and financed by
additional revenues or funds dedicated from other sources.
There
is hereby created in the State Treasury a The special revenue fund
in the State Treasury known as the Community and Technical College
Capital Improvement Fund into which shall be deposited the amounts
specified in subsection (j), section eighteen, article twenty-two,
chapter twenty-nine of this code
is continued. All amounts
deposited in the fund shall be pledged to the repayment of the
principal, interest and redemption premium, if any, on any revenue
bonds or refunding revenue bonds authorized by the commission for
community and technical college capital improvements
or used by the
council on a cash basis as provided under subdivision (4),
subsection (j), section eighteen, article twenty-two, chapter
twenty-nine of this code for community and technical college
capital improvements or capital projects.
(l) Funding of systemwide and campus-specific revenue bonds
under any other section of this code is continued and authorized
pursuant to the terms of this section. Revenues of any state
institution of higher education pledged to the repayment of any
revenue bonds issued pursuant to this code shall remain pledged.
(m) Any revenue bonds for state institutions of higher
education proposed to be issued under this section or other
sections of this code first must be approved by the commission.
(n) Revenue bonds issued pursuant to this code may be issued
by the commission or governing boards, either singly or jointly.
(o) Fees pledged for repayment of revenue bonds issued under
this section or article twelve-b, chapter eighteen prior to or after the effective date of this section shall be transferred to
the commission in a manner prescribed by the commission. The
commission may transfer funds from the accounts of institutions
pledged for the repayment of revenue bonds issued prior to the
effective date of this section or issued subsequently by the
commission upon the request of institutions, if an institution
fails to transfer the pledged revenues to the commission in a
timely manner.
(p) Effective July 1, 2004, the capital and auxiliary capital
fees authorized by this section and section one of this article are
in lieu of any other fees set out in this code for capital and
auxiliary capital projects to benefit public higher education
institutions. Notwithstanding any other provisions of this code to
the contrary, in the event any capital, tuition, registration or
auxiliary fees are pledged to the payment of any revenue bonds
issued pursuant to any general bond resolutions of the commission,
any of its predecessors or any institution, adopted prior to the
effective date of this section, such the fees shall remain in
effect in amounts not less than the amounts in effect as of that
date, until the revenue bonds payable from any of the fees have
been paid or the pledge of the fees is otherwise legally
discharged.
ARTICLE 19. CAPITAL PROJECTS AND FACILITIES NEEDS.
§18B-19-1. Legislative findings and intent.
(a) The Legislature finds that:
(1) State institutions of higher education vary widely in the
conditions of their facilities infrastructure.
(2) State institutions of higher education vary widely in
their ability to incur debt for capital improvements. It is nearly
impossible for community and technical colleges and some smaller
baccalaureate institutions to fund significant capital improvements
in the absence of state funding.
(3) A student enrolled at a community and technical college
that previously was administratively linked to a baccalaureate
institution pays substantially higher tuition and mandatory fees
than a student enrolled at a freestanding community and technical
college. This cost discrepancy is due in large part to the
significantly higher capital fees charged to these students to pay
debt service for capital improvements.
(4) The substantial amount of capital fees that students must
pay at the institution level contributes significantly to the poor
grade the state receives in the category of "Affordability" in
Measuring Up: The National Report Card on Higher Education.
(5) It is beneficial for the state to provide additional
ongoing capital funding to reduce the obligation of students and
parents to bear the cost of higher education capital improvements
and facilities maintenance.
(6) West Virginia is one of very few states that does not address higher education capital improvements and facilities
maintenance needs through a statewide plan.
(7) State funding for capital improvements should align with
state and system higher education goals, objectives and priorities
as set forth in article one-d of this chapter.
(8) State capital funding should focus primarily on
educational and general capital improvements, not auxiliary capital
improvements.
(9) Renovations of existing buildings generally deserve
greater consideration for state funding than new construction.
However, new construction may deserve greater consideration than
renovation when a state or system goal, objective or priority is
implicated.
(10) As the Legislature increases funding for new educational
and general capital improvements and major renovations, and
supplants existing educational and general debt, institutions
should target funds for maintenance and deferred maintenance needs.
(11) If community and technical colleges are to keep the cost
of education affordable, they cannot be expected to fund
maintenance obligations entirely from student capital fees.
(12) The commission and council should scrutinize all
institutional requests to incur additional debt carefully to
determine their effect on institution debt capacity and the impact
that incurring additional debt will have on students.
(13) State institutions of higher education ultimately should
target adequate state capital contributions and capital fees to
address maintenance and deferred maintenance needs.
(14) Until institutions are able to generate sufficient
revenue to address maintenance and deferred maintenance needs, the
Legislature should provide periodic funding to assist institutions
in addressing these needs. Funding priority should be given to
projects that address building code requirements and critical
maintenance needs.
(15) In supporting future high priority capital needs, the
Legislature, commission and council should not reward institutions
with state funding if they neglect to address facilities
maintenance needs or do not prudently manage their capital
resources.
(16) Once an institution's capital development plan has been
approved by the governing board and the commission or council, as
appropriate, project priorities should not change significantly
from year to year.
(17) Commission and council staff should participate to a
greater extent in managing capital projects at smaller institutions
than at larger institutions as smaller institutions often lack the
expertise necessary to plan, design and complete projects at or
under budget.
(b) The intent of the Legislature relating to this article includes, but is not limited to, the following:
(1) Dedicated state funding sources shall be designated to
finance construction and renovation of educational and general
facilities at state institutions of higher education from time to
time;
(2) Capital project lists submitted by institutions to the
commission or council, as appropriate, and capital project lists
submitted by the commission and council to the state budget office,
Legislative Oversight Commission on Education Accountability, and
Joint Committee on Government and Finance for consideration for
state funding shall be reasonable requests that align with state
and system goals, objectives and priorities and reasonably could be
funded if approved;
(3) As the Legislature increases its responsibility for
financing new educational and general facilities and major
renovations, the commission, council and institutions shall ensure
that sufficient capital revenues are available for maintenance and
that the facilities are maintained adequately;
(4) Ongoing state funding shall be dedicated to supplement
capital fees available for maintenance at community and technical
colleges; and
(5) Once a system capital plan is in place, institutions
annually shall set aside adequate funding to ensure that ongoing
facilities maintenance needs are met.
§18B-19-2. Definitions.
As used in this article, the following terms have the meanings
ascribed to them.
(a) "ADA" means the Americans with Disabilities Act of 1990,
42 U.S.C. §12101, et seq.
(b) "Auxiliary enterprise" means an entity that exists to
furnish goods or services to students, faculty, staff or others;
charges a fee directly related to, although not necessarily equal
to, the cost of the goods or services; and is managed as
essentially self-supporting.
(c) "Auxiliary facility" means a building or structure that is
used for an auxiliary enterprise including, but not limited to,
residence halls, food services, parking, intercollegiate athletics,
faculty and staff housing, student unions, bookstores and other
service centers.
(d) "Auxiliary fees" includes, but is not limited to, the
following sources:
(1) Parking fees received from any source;
(2) Revenues received from athletic events, including ticket
sales, television revenues and skybox fees;
(3) Bookstore revenues;
(4) Student union vendor and user fees;
(5) Donations or grants from any external source;
(6) Facility rental fees; and
(7) Fees assessed to students to support auxiliary
enterprises.
(e) "Capital planning" means a purposeful activity that
focuses attention on long term physical plant objectives that
should be accomplished in a logical sequence over time as
opportunities arise and resources become available.
(f) "Capital project management" means planning, designing,
bidding and providing construction administration and oversight of
architectural, engineering and construction contracts and projects.
(g) "Deferred maintenance" means the failure to perform needed
repair, maintenance and renewal as part of normal maintenance
management for capital facilities and deferring such action to a
future budget cycle or until funds are available.
(h) "Educational and general capital fees" means the fees
collected from students to pay debt service for capital improvement
bonds issued by the commission and governing boards for educational
and general facilities, for the maintenance of those facilities and
to fund capital improvements in those facilities on a cash basis.
(i) "Educational and general facility" means a building or
structure used for instruction and instructional support purposes,
and includes classroom, laboratory, library, computer laboratory,
faculty and administrative office and other academic support
spaces.
(j) "Extraordinary circumstance" or "extraordinary circumstances" means, a situation involving life-safety issues,
issues that would result in extensive damage to a facility if not
addressed immediately, any unforeseen opportunity to use external
funds and any other situation the commission or council determines
should warrant special consideration.
(k) "Life-safety" means a condition existing on a campus that,
if not corrected immediately, would jeopardize the safety and
property of students, faculty, staff and the visiting public.
(l) "Maintenance" means the work necessary within a budget
cycle to realize the originally anticipated life of a fixed asset,
including buildings, fixed equipment and infrastructure.
(m) "Governing board", "state institution of higher education"
and "institution under the jurisdiction of the commission" means
all state institutions of higher education including Marshall
University and West Virginia University and their respective
governing boards.
§18B-19-3. System capital development planning.
(a) By December 31, 2011, the commission and council, jointly
or separately, shall develop a system capital development plan for
approval by the Legislative Oversight Commission on Education
Accountability. At a minimum the initial plan shall include the
following:
(1) System goals for capital development;
(2) An explanation of how system capital development goals align with state goals, objectives and priorities established in
articles one and one-d of this chapter and with system master
plans;
(3) A process for prioritizing capital projects for state
funding based on their ability to further state goals, objectives
and priorities and system capital development goals;
(4) A building renewal formula to calculate a dollar benchmark
that shall be collected annually and invested in facilities to
minimize deferred maintenance and to provide the commission and
council objective information to determine if the investments in
maintenance are occurring;
(5) A process for governing boards to follow in developing and
submitting campus development plans to the commission or council,
as appropriate, for approval;
(6) A process for governing boards to follow to ensure that
sufficient revenue is generated for and applied toward facilities
maintenance; and
(7) A discussion addressing how capital fees dedicated to debt
service for the bond issue to be paid off in 2012 will be used
after the payoff date.
(b) The system capital development plan shall be developed in
consultation with governing boards and appropriate institution
staff. Before approving the capital development plan, the
commission and council shall afford interested parties an opportunity to comment on the plan through a notice-and-comment
period of at least thirty days.
(c) The commission and council shall update its system capital
development plan at least once in each ten-year period.
§18B-19-4. Campus development plans.
(a) Each governing board shall update its current campus
development plan and submit the updated plan to the commission or
council, as appropriate, for approval by June 30, 2013. A campus
development plan shall be developed for a ten-year period and shall
align with criteria specified in the following sources:
(1) The system capital development plan;
(2) The institution's approved master plan and compact; and
(3) The current campus development plan objectives.
(b) Campus development plans are intended to be aspirational;
however, an institution's plan shall be appropriate to its size,
mission, and enrollment and to the fiscal constraints within which
the institution operates. At a minimum the campus development plan
shall include the following:
(1) The governing board's development strategy;
(2) An assessment of the general condition and suitability of
buildings and facilities, including deferred maintenance, life-
safety and building code issues, ADA requirements and energy
efficiency;
(3) An assessment of the impact of projected enrollment and demographic changes on building and facility needs;
(4) A comprehensive list of deferred maintenance projects that
need to be addressed for each campus by building or facility and
provide an estimated cost for each;
(5) A list of existing buildings and facilities in need of
renovations, additions, demolition or any combination thereof;
(6) A list of major site improvements that are needed,
including vehicular and pedestrian circulation, parking and
landscaping;
(7) A list of telecommunications, utilities and other
infrastructure improvements that are needed;
(8) A delineation of clear property acquisition boundaries
that are reasonably appropriate for campus expansion;
(9) A list of proposed new facilities and building sites;
(10) A list of capital projects in priority order;
(11) Estimates of the timing, phasing and projected costs
associated with individual projects;
(12) If an institution has multiple campuses in close
proximity, a delineation of how the campuses should interact and
support each other to minimize duplication of facilities, improve
efficiency and be aesthetically compatible;
(13) A statement of the impact of the plan upon the local
community and the input afforded local and regional governmental
entities and the public with respect to its implementation; and
(14) Any other requirement established by the commission and
council in the rules required by section seventeen of this article.
(c) Campus development plans shall incorporate all current and
proposed facilities, including educational and general and
auxiliary facilities.
(d) At the next regularly scheduled meeting of the commission
or council, as applicable, following the fifth anniversary date
after the commission or council approves the development plan of a
governing board, the governing board shall report on the progress
made in the first five years to implement the campus development
plan for each campus under its jurisdiction. In addition, the
governing board shall report on its plans to implement the
remaining five-year period of its campus development plan.
(e) Each governing board shall update its campus development
plan at least once in each ten-year period and any update is
subject to the approval of the commission or council, as
appropriate.
(f) A governing board may not implement a campus development
plan or plan update that has not been approved by the commission or
council, as appropriate.
§18B-19-5. Capital appropriation requests.
(a) The commission and council each shall submit a prioritized
capital appropriation request annually to the state budget office
as required by article two, chapter eleven-b of this code consisting of major capital projects and maintenance projects.
(b) The commission and council each shall develop a process
for governing boards to follow in submitting a list of major
educational and general capital projects so that a prioritized
major capital project list, approved by the commission or council,
as appropriate, may be submitted to the state budget office by the
applicable deadline.
(1) The governing board's major capital project list shall
include the following items:
(A) Projects identified in the governing board's approved
campus development plan or plans. A project may not be included
which is not contained in the approved plan, except when
extraordinary circumstances otherwise warrant;
(B) A current estimate of each project's estimated cost
accounting for inflation since completion of the campus development
plan. The size and scope of the project may not change unless the
campus development plan has been updated and approved as provided
in section three of this article; and
(C) Any additional information required to be provided by the
commission, council or state budget office.
(2) The commission and council each shall rank the major
capital projects submitted by the governing boards according to
priority consistent with the criteria outlined in the system
capital development plan. The council and commission may not submit to the state budget office a request for an institution
which the commission or council determines reasonably could not
secure funding through the appropriation process during the
following fiscal year.
(c) The commission and council each shall develop a process
for governing boards to follow in submitting a list of maintenance
projects so that a prioritized maintenance project list, approved
by the commission or council, as appropriate, may be submitted to
the state budget office by the applicable deadline.
(1) No later than April 1, 2011, and annually thereafter, the
commission and council, as appropriate, shall provide each
governing board a building renewal calculation that identifies the
funds that should be collected and invested in its buildings and
facilities during the next fiscal year to maintain them and
minimize deferred maintenance.
(2) Upon receiving the building renewal calculation, each
governing board shall make realistic revenue estimates of the funds
available for maintenance projects from educational and general
capital fees, from auxiliary and auxiliary capital fees and from
any other revenue that may be used for maintenance projects, as
well as any anticipated reserves. The governing boards then shall
identify and submit proposed maintenance projects, consistent with
its campus development plan or plans, to be funded from these
revenues.
(3) The commission and council each shall report to the
Legislative Oversight Commission on Education Accountability on the
revenue available to governing boards for educational and general
and auxiliary maintenance projects, as well as any shortfalls based
on building renewal formula calculation, and major maintenance
projects that institutions propose to undertake during the upcoming
fiscal year.
(4) The commission shall work with institutions under its
jurisdiction to ensure that adequate funds are generated to fund
maintenance and build adequate reserves from educational and
general and auxiliary capital fees and other revenue consistent
with the building renewal formula. The Legislature recognizes that
it may take several years for this to be accomplished fully.
(5) The council shall work with the Legislature and
institutions under its jurisdiction to ensure that a combination of
appropriated and nonappropriated revenue is available to fund
maintenance and build adequate reserves at community and technical
colleges consistent with the building renewal formula.
§18B-19-6. Capital project financing.
(a) The commission and governing boards, jointly or singly,
may issue revenue bonds for capital project financing in accordance
with section eight, article ten of this chapter.
(b) A governing board may seek funding for and initiate
construction or renovation work only for projects contained in an approved campus development plan.
(c) A governing board may fund capital improvements on a cash
basis or through bonding or other financing method that is approved
by the commission, and by the council if appropriate.
(1) If the cost of an improvement project for any institution,
except Marshall University or West Virginia University, exceeds
$1 million, the governing board first shall obtain the approval of
the commission or council, as appropriate. If the cost of an
improvement project for Marshall University or West Virginia
University exceeds $5 million, the governing board first shall
obtain the approval of the commission.
(2) Prior to approving bonding or any alternative financing
method, the commission, and council if appropriate, shall evaluate
the following issues:
(A) The institution's debt capacity and ability to meet the
debt service payments for the full term of the financing;
(B) Whether the revenue to be generated by the institution is
sufficient to complete the project;
(C) The institution's ability to fund ongoing operations and
maintenance;
(D) The impact of the financing arrangement on students; and
(E) Any other factor considered appropriate.
(d) A governing board shall notify the Joint Committee on
Government and Finance at least thirty days before beginning construction or renovation work on any capital project in excess of
$1 million.
(e) The commission may pledge all or part of the fees of any
or all state institutions of higher education as part of a system
bond issue.
(f) Any fee or revenue source pledged prior to the effective
date of this section for payment of any outstanding debt remains in
effect until the debt is fully repaid or refunded.
§18B-19-7. Capital project management.
(a) The commission, council and governing boards shall ensure
that capital funds are spent appropriately and that capital
projects are managed effectively. Project management shall be
conducted in all respects according to sound business practices and
applicable laws, and rules.
(b) The commission shall employ a sufficient number of
competent facilities staff experienced in capital project
development and management that is suitable for the number, size
and complexity of the capital projects being managed. At least one
employee shall be Leadership in Energy and Environmental Design
(LEED) certified beginning December 31, 2011.
(c) An institution that has entered into construction
contracts averaging more than $50 million over the most recent
rolling five-year period is responsible for capital project
management at that institution.
(1) The governing board shall employ the following personnel:
(A) A facilities staff experienced in capital project
development and management that is suitable for the number, size
and complexity of the capital projects being managed; and
(B) At least one employee who is Leadership in Energy and
Environmental Design (LEED) certified beginning December 31, 2011.
(2) The governing board shall adopt a capital project
management rule in accordance with section six, article one of this
chapter, that is consistent with the capital management rules of
the commission and council, as appropriate.
(3) The capital project management rule shall include at least
the following items:
(A) Delineation of the governing board's responsibilities with
respect to capital project management and the responsibilities
delegated to the institution's president;
(B) A requirement for the use of the state's standard contract
documents for architectural, engineering, construction,
construction management and design-build services as appropriate to
a particular project;
(C) The governing board's requirements for the following
procedures:
(i) Monitoring and approving project designs to ensure
conformance with the state and system goals, objectives and
priorities and the governing board's master plan, compact and campus development plan;
(ii) Approval of project budgets, including a reasonable
contingency reserve for unknown or unexpected expenses and for
bidding;
(iii) Approval of architectural, engineering and construction
contracts exceeding an amount to be determined by the governing
board;
(iv) Approval of contract modifications and construction
change orders; and
(v) Project closeout and final acceptance of the project by
the governing board.
(4) The institutional capital project management rule shall be
filed with the commission no later than one hundred eighty days
following the effective date of the rule required of the commission
and council in section seventeen of this article.
(5) The commission may review or audit projects greater than
$5 million periodically to ascertain that appropriate capital
project management practices are being employed.
(d) For institutions that have entered into construction
contracts averaging at least $20 million, but not more than
$50 million, over the most recent rolling five-year period:
(1) The governing board, with assistance as requested from the
commission, shall manage all capital projects if the governing
board meets the following conditions:
(A) Employs at least one individual experienced in capital
project development and management; and
(B) Adopts a capital project management rule that is approved
by the commission. The capital project management rule may be
amended at the discretion of the governing board, but amendments
shall be submitted to the commission for review and approval before
becoming effective.
(2) The institutional capital project management rule shall
include at least the following items:
(A) Delineation of the governing board's responsibilities with
respect to capital project management and the responsibilities
delegated to the institution's president;
(B) A requirement for the use of the state's standard contract
documents for architectural, engineering, construction,
construction management and design-build services as appropriate to
a particular project; and
(C) The governing board's requirements for the following
procedures:
(i) Monitoring and approving project designs to ensure
conformance with the state and system goals, objectives and
priorities and the governing board's master plan, compact and
campus development plan;
(ii) Approval of project budgets, including a reasonable
contingency reserve for unknown or unexpected expenses and for bidding;
(iii) Approval of architectural, engineering, construction and
other capital contracts exceeding an amount to be determined by the
governing board;
(iv) Approval of contract modifications and construction
change orders; and
(v) Project closeout and final acceptance of the project by
the governing board.
(3) If an institution does not meet the provisions of this
subsection, the commission shall manage all capital projects
exceeding $1 million.
(4) The commission staff shall review and audit periodically
all projects greater than $1 million to ascertain that appropriate
project management practices are being employed. If serious
deficiencies are identified and not addressed sufficiently within
ninety days, commission staff may assume management of all
projects.
(e) For institutions that have entered into construction
contracts averaging less than $20 million over the most recent
rolling five-year period and for all community and technical
colleges, the commission and council shall manage capital projects
exceeding $1 million. In the rule required by section seventeen of
this article, the commission and council, as appropriate, shall
adopt procedures to afford participation by the governing boards and staff in the planning, development and execution of capital
projects.
§18B-19-8. Maintenance.
(a) Each governing board shall ensure that facilities under
its jurisdiction are maintained and that a listing of any major
deferred maintenance projects is provided annually to the
commission or council, as appropriate.
(b) Each governing board shall strive to invest annually an
amount for maintenance that is consistent with the building renewal
formula developed and approved by the commission and council and to
generate a reserve sufficient to address unexpected maintenance
needs.
(c) The commission and council shall evaluate whether
sufficient resources are being devoted by a governing board for
maintenance based on the following criteria:
(1) Maintenance expenditures in comparison to building renewal
formula estimates of appropriate expenditures; and
(2) Periodic evaluations of the conditions of facilities at
the institution and its performance and effectiveness in
maintaining its facilities.
§18B-19-9. Higher education facilities information system.
(a) The commission and council jointly shall develop and
maintain a higher education facilities information system. The
higher education facilities information system shall serve as a vehicle for carrying out the following functions:
(1) Acquisition of statewide data;
(2) Statewide standardization of space use and classification
based on nationally recognized standards and measurements to
facilitate comparisons among post-secondary education institutions
within the state, as well as regionally and nationally; and
(3) Other purposes as determined by the commission and
council.
(b) At a minimum the higher education facilities information
system shall:
(1) Provide a statewide inventory of higher education
facilities, including those acquired by long-term lease, lease-
purchase or other arrangement whereby the institution has long-term
beneficial use. The inventory shall include, but is not limited
to, the institution and campus location of the facility, the
construction date, the original cost, square footage, floor plans,
type of construction, ownership status, the purposes for which it
is used, the current replacement cost and any other data the
commission and council consider appropriate;
(2) Provide an inventory of all rooms within each facility,
which includes, but is not limited to, the room number, the square
footage, room usage, number of student stations and any other data
the commission and council consider appropriate;
(3) Provide a vehicle for institutions to submit capital appropriation requests to the commission and council;
(4) Provide a vehicle to track the status and cost of
institution capital projects from inception to completion,
including major maintenance and deferred maintenance projects; and
(5) Provide the facility information needed to calculate the
building renewal formula.
(c) The commission and council shall establish benchmarks for
classroom and class laboratory use. An analysis of utilization
shall be performed for the fall and spring semesters of each
academic year. The efficient use of classrooms and class
laboratories is a factor in determining whether an institution
needs additional classroom and laboratory facilities.
(d) Each governing board and any institution under its
jurisdiction shall participate and cooperate with the commission
and council in all respects in the development and maintenance of
the higher education facilities information system.
(e) The higher education facilities information system may be
used for other purposes set forth by the commission and council in
the rules required by section seventeen of this article.
§18B-19-10. Authorization to sell property; use of proceeds.
(a) Notwithstanding any other provision of law or this code to
the contrary, the commission, council and governing boards each may
sell, lease, convey or otherwise dispose of all or part of any real
property that it owns, either by contract or at public auction, and retain the proceeds of the transaction.
(1) The commission, council and governing boards may not sell,
lease, convey or otherwise dispose of any real property without
first performing the following steps:
(A) Having the property appraised by two independent licensed
appraisers and may not sell the property for less than the average
of the two appraisals;
(B) Providing notice to the public in the county in which the
real property is located by a Class II legal advertisement pursuant
to section two, article three, chapter fifty-nine of this code;
(C) Holding a public hearing on the issue in the county in
which the real property is located; and
(D) In the case of the commission, notifying the Joint
Committee on Government and Finance.
(2) Any proceeds from the sale, lease, conveyance or other
disposal of real property that is used jointly by institutions or
for statewide programs under the jurisdiction of the commission or
the council shall be transferred to the General Revenue Fund of the
state.
(b) The commission, council or a governing board shall deposit
the net proceeds from the sale, lease, conveyance or other disposal
of real property into a special revenue account in the State
Treasury to be appropriated by the Legislature in the annual budget
bill for the purchase of additional real property, equipment or technology, or for capital improvements or maintenance at the
institution that sold the surplus real property.
§18B-19-11. Authorization to lease-purchase.
(a) The commission or council may enter into lease-purchase
agreements for capital improvements, including equipment, on behalf
of, or for the benefit of, a state institution of higher education,
the commission or council.
(b) After the commission or council, as appropriate, has
granted approval for a lease-purchase agreement by a governing
board, the board may enter into a lease-purchase agreement for
capital improvements, including equipment.
(c) The governing boards of Marshall University and West
Virginia University may enter into lease-purchase agreements for
the state institutions of higher education known as Marshall
University and West Virginia University without seeking the
approval of the commission.
(d) A lease-purchase agreement constitutes a special
obligation of the State of West Virginia. The obligation may be
met from any funds legally available to the commission, council or
the institution and shall be cancelable at the option of the
commission, council, governing board or institution at the end of
any fiscal year. The obligation, or any assignment or
securitization of the obligation, never constitutes an indebtedness
of the State of West Virginia or any department, agency or political subdivision thereof, within the meaning of any
Constitutional provision or statutory limitation, and may not be a
charge against the general credit or taxing powers of the state or
any political subdivision of the state. The facts shall be plainly
stated in any lease-purchase agreement.
(e) A lease-purchase agreement shall prohibit assignment or
securitization without consent of the lessee and the approval of
the agreement as to form by the Attorney General. Proposals for
any agreement shall be requested in accordance with the
requirements of this section and rules of the commission and
council. In addition, any lease-purchase agreement that exceeds
$100,000 total shall be approved as to form by the Attorney
General.
(f) The interest component of any lease-purchase obligation is
exempt from all taxation of the State of West Virginia, except
inheritance, estate and transfer taxes. It is the intent of the
Legislature that if the requirements set forth in the Internal
Revenue Code of 1986, as amended, and any regulations promulgated
pursuant thereto are met, the interest component of any lease-
purchase obligation also is exempt from the gross income of the
recipient for purposes of federal income taxation and may be
designated by the governing board or the president of the
institution as a bank-qualified obligation.
§18B-19-12. Authorization to lease.
(a) Notwithstanding any other provision of this code to the
contrary, the commission, council and governing boards may, in the
name of the state, lease, or offer to lease, as lessee, any
grounds, buildings, office or other space.
(b) The commission, council and governing boards have sole
authority to select and to acquire by contract or lease all
grounds, buildings, office space or other space, the rental of
which is necessarily required by the commission, council or
institutions.
(c) Before executing any rental contract or lease, the
commission, council or a governing board shall determine the fair
market value for the rental of the requested grounds, buildings,
office space or other space, in the condition in which they exist,
and shall contract for or lease the premises at a price not to
exceed the fair market value.
(d) The commission, council and governing boards may enter
into long-term agreements for buildings land and space for periods
longer than one fiscal year but not to exceed forty years.
(e) Any lease shall contain, in substance, all the following
provisions:
(1) The commission, council or governing board, as lessee, has
the right to cancel the lease without further obligation on the
part of the lessee upon giving thirty days' written notice to the
lessor at least thirty days prior to the last day of the succeeding month;
(2) The lease is considered canceled without further
obligation on the part of the lessee if the Legislature or the
federal government fails to appropriate sufficient funds for the
lease or otherwise acts to impair the lease or cause it to be
canceled; and
(3) The lease is considered renewed for each ensuing fiscal
year during the term of the lease unless it is canceled by the
commission, council or governing board before the end of the then-
current fiscal year.
(f) The commission, council or institution that is granted any
grounds, buildings, office space or other space leased in
accordance with this section may not order or make permanent
changes of any type thereto, unless the commission, council or
governing board, as appropriate, has first determined that the
change is necessary for the proper, efficient and economically
sound operation of the institution. For purposes of this section,
a "permanent change" means any addition, alteration, improvement,
remodeling, repair or other change involving the expenditure of
state funds for the installation of any tangible thing that cannot
be economically removed from the grounds, buildings, office space
or other space when vacated by the institution.
(g) Leases and other instruments for grounds, buildings,
office or other space, once approved by the commission, council or governing board, may be signed by the chief executive officer, or
designee, of the commission, council or institution.
(h) Any lease or instrument exceeding $100,000 annually shall
be approved as to form by the Attorney General. A lease or other
instrument for grounds, buildings, office or other space that
contains a term, including any options, of more than six months for
its fulfillment shall be filed with the State Auditor.
§18B-19-13. Real property contracts and agreements.
(a) Except as provided elsewhere in this article, any purchase
of real estate, any lease-purchase agreement and any construction
of new buildings or other acquisition of buildings, office space or
grounds resulting therefrom, shall be approved by the commission or
council, as appropriate, and provided to the Joint Committee on
Government and Finance for prior review, if the transaction exceeds
$1 million.
(b) The commission, council and each governing board shall
provide the following to the Joint Committee on Government and
Finance:
(1) A copy of any contract or agreement for real property
exceeding $1 million to which it is a party; and
(2) A report setting forth a detailed summary of the terms of
such contract or agreement, including the name of the property
owner and the agent involved in the sale.
(c) The copy and report required by subsection (b) of this section shall be provided at least thirty days before any sale,
exchange, transfer, purchase, lease-purchase, lease or rental of
real property, refundings of lease-purchases, leases or rental
agreements, construction of new buildings, and any other
acquisition or lease of buildings, office space or grounds.
(d) A contract or agreement that is for the lease purchase,
lease or rental of real property, where the costs of real property
acquisition and improvements are to be financed, in whole or in
part, with bond proceeds, may contain a preliminary schedule of
rents and leases for purposes of review by the committee.
(e) For renewals of contracts or agreements required by this
section to be reported, the commission, council or governing board
shall provide a report setting forth a detailed summary of the
terms of the contract or agreement, including the name of the
property owner.
(f) The Joint Committee on Government and Finance shall meet
and review any contract, agreement or report within thirty days of
receipt.
(g) Each governing board shall provide to the commission or
council, as appropriate, a copy of any contract or agreement
submitted to the Joint Committee on Government and Finance pursuant
to this section.
§18B-19-14. Authorization for sale lease-back.
(a) Notwithstanding any other provision of this code to the contrary and upon approval of the commission or council, as
appropriate, before incurring any obligation, a governing board may
sell any building that is on unencumbered real property to which
the board holds title and lease back the same building. The board
may deposit the net proceeds of the transaction into a special
revenue account in the State Treasury to be appropriated by the
Legislature for the use of the institution at which the real
property is located. Prior to such action, the board shall take
the following steps:
(1) Have the property appraised by two licensed appraisers and
may not sell the property for less than the average of the two
appraisals; and
(2) Retain independent financial and legal services to examine
fully all aspects of the transaction.
(b) The sale may be made only to a special purpose entity that
exists primarily for the purpose of supporting the institution at
which the building is located.
§18B-19-15. Construction and operation of auxiliary facilities;
fees for auxiliary enterprises.
(a) A governing board may provide, construct, erect, improve,
equip, maintain and operate auxiliary facilities, as defined in
section two of this article, for students, employees and visitors
on land it owns or leases.
(b) The cost of construction, erection, improvement or equipment may be payable with the proceeds of revenue bonds
authorized by this code or by any other financing method provided
in this article.
(c) A governing board may engage engineering, architectural,
construction and other experts as it considers necessary, and may
specify the payment and contract terms, which are included in the
cost of the project.
(d) A governing board may establish rules and charge fees for
use of its facilities. The fees charged shall be structured so as
to generate funds sufficient for the following purposes:
(1) To maintain payment of the principal of and interest on
any revenue bonds, and for reserves for the revenue bonds;
(2) To operate the auxiliary enterprise;
(3) To satisfy annual building renewal formula requirements;
and
(4) To build a reserve for major renovation or replacement.
(e) All moneys collected for the use of auxiliary facilities
shall be paid to the credit of and expended by that institution in
accordance with section thirteen, article ten of this chapter.
§18B-19-16. Condemnation generally.
(a) The commission, council and governing boards each may
acquire by condemnation land or buildings for the use and benefit
of any state institution under its jurisdiction. Any condemnation
proceeding conducted pursuant to this section is governed by chapter fifty-four of this code.
(b) The commission, council and governing boards each may
condemn any interest, right or privilege, land or improvement,
which in its opinion is necessary, in the manner provided by law
for the acquisition by this state of property for public purposes.
The state is under no obligation to accept and pay for any property
condemned and may pay for the property only from the funds provided
for that purpose.
(c) In any proceeding to condemn, the order shall be made by
the court having jurisdiction of the suit, action or proceedings.
A bond or other security may be required by the court securing the
property owner against any loss or damage to be sustained by reason
of the state's failure to accept and pay for the property. The
bond or security may not impose liability or debt on or of the
state as contemplated by the Constitution of the State in relation
to state debt.
§18B-19-17. Legislative rule.
The commission and council jointly shall propose a rule or
rules for legislative approval in accordance with article three-a,
chapter twenty-nine-a of this code, to implement this article.
§18B-19-18. Reporting.
(a) Beginning July 1, 2013, and annually thereafter, the
commission and council shall provide a general status report to the
Legislative Oversight Commission on Education Accountability on the progress being made in implementing the state-wide capital
development plan and on the progress of the governing boards in
implementing the objectives of institutions' campus development
plans.
(b) The process required by the commission and council for
reporting by the governing boards shall be included in the rules
required by section seventeen of this article.
NOTE: The purpose of this bill is to repeal certain provisions
concerning higher education capital facilities generally and
replaces them with new provisions. The bill repeals certain
specific duties of governing boards of higher education
institutions. The bill eliminates condemnation rights, execution
of contracts of those boards. The bill eliminates certain
obligations concerning capital construction and repair duties and
the authority of certain state institutions from selling certain
properties and lease back provisions. The bill sets forth certain
specific responsibilities of the Higher Education Policy Commission
and the Council for Community and Technical College Education. The
bill also provides for tuition and fee increases, review and
approval of capital project planning, financing, management and
maintenance, acquisition, sale, transfer, exchange, lease,
conveyance and condemnation of real property, construction and
operation of capital facilities. The bill provides for collection
and use of certain capital fees, establishes in the State Treasury
a capital maintenance fund for each state institution of higher
education. The bill further makes legislative findings, defines
terms and requires legislative rulemaking. The bill also
coordinates system facilities and institution facilities planning.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5,
§18B-19-6, §18B-19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11,
§18B-19-12, §18B-19-13, §18B-19-14, §18B-19-15, §18B-19-16,
§18B-19-17 and §18B-19-18 are new; therefore, strike-throughs and
underscoring have been omitted.
This bill has been approved and recommended for passage during
the 2010 Regular Session of the Legislature by the Joint Standing
Committee on Education.