ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 484
(Senators McCabe, Unger, Foster, Stollings, Wells, Minard, Beach and Kessler
(Acting President), original sponsors)
____________
[Passed March 12, 2011; in effect from passage.]
____________
AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §18B-1E-1, §18B-1E-2,
§18B-1E-3, §18B-1E-4, §18B-1E-5, §18B-1E-6, §18B-1E-7, §18B-
1E-8 and §18B-1E-9, all relating to powers and duties of the
policy commission; authorizing creation of certain
corporations; authorizing policy commission to enter into
certain agreements and contractual arrangements; terms and
conditions; legislative findings, purpose and intent;
definitions; establishing essential criteria for certain
corporations; specifying corporation membership, organization
and financial requirements; providing for appointment of and
specifying qualifications for executive director; requiring
annual audit of corporation operations; clarifying issues of
conflicts of interest; prohibiting waiver of sovereign
immunity; clarifying issues of debt obligations; requiring
memorandum of agreement on research collaboration and cooperation; specifying parties to agreement and setting forth
certain conditions; specifying certain deadlines; and
requiring certain reports.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §18B-1E-1, §18B-1E-2,
§18B-1E-3, §18B-1E-4, §18B-1E-5, §18B-1E-6, §18B-1E-7, §18B-1E-8
and §18B-1E-9, all to read as follows:
ARTICLE 1E. MANAGEMENT AGREEMENTS FOR THE HIGHER EDUCATION POLICY
COMMISSION.
§18B-1E-1. Legislative findings and purpose.
(a) The Legislature finds that economic development in West
Virginia depends in part on collaborations developed between higher
education and businesses and industry, particularly in the
advancement of new and emerging technologies. It is in the best
interests of the citizens of the state to implement programs which
promote this research and contribute to the general economic
welfare.
(b) The Legislature further finds that the transfer of
property to the Commission to establish the West Virginia
Education, Research and Technology Park created a new and
unprecedented opportunity to promote research and development in
the state. An efficiently managed Technology Park will encourage
private sector participation in and support for research and
economic development and will facilitate collaboration among the
commission, the doctoral institutions and their research
corporations.
(c) It is the responsibility of the commission to ensure that the day to day operations of the Technology Park are carried out
effectively and efficiently in order to provide the greatest
investment return to the people of West Virginia. To this end the
Legislature finds that a mechanism is needed to simplify and
expedite property management and purchasing of equipment, material
and personal services.
(d) Therefore, the purpose of this article is to provide the
commission with the authority necessary to carry out its
responsibilities related to the operation of the Technology Park.
The commission is authorized to enter into agreements and other
contractual relationships with an affiliated corporation in order
to achieve maximum efficiency in managing the Technology Park.
§18B-1E-2. Definitions.
The following words used in this article have the meanings
ascribed to them in this section unless the context clearly
indicates a different meaning:
(a) "Affiliated corporation" or "corporation" means a
corporation which meets the essential criteria prescribed in
section three of this article and whose purpose is to provide
management services to the commission in carrying out the day to
day operations of the Technology Park;
(b) "Agreement" means an agreement or contractual relationship
entered into between the commission and an affiliated corporation
pursuant to the provisions of this article;
(c) "Board of directors" means the governing body of a
corporation created pursuant to section three of this article;
(d) "Doctoral institution" means Marshall University or West
Virginia University;
(e) "Executive director" means the chief executive officer of
an affiliated corporation employed pursuant to section five of this
article;
(f) "Potential membership" means the total number of members
who comprise the board of directors when all membership seats are
filled;
(g) "Private sector member" means a director of an affiliated
corporation who is not an employee of the commission nor of any
entity bearing a direct or indirect relationship to the commission;
(h) "Research corporation" means a corporation established
with respect to Marshall University or West Virginia University
pursuant to section three, article twelve of this chapter; and
(i) "Technology Park" means the state-owned West Virginia
Education, Research and Technology Park affiliated with the
commission.
§18B-1E-3. Commission authorized to contract with corporation;
corporation to meet essential criteria; corporation membership
and organization; financial requirements.
(a) The commission is authorized to enter into agreements and
any other contractual relationships with an affiliated corporation
formed as set forth in this article.
(b) The affiliated corporation shall meet the following
essential criteria:
(1)
Corporation status. -- The corporation is organized as a
non-profit, non-stock corporation under the general corporation
laws of the state exclusively for charitable, educational or
scientific purposes within the meaning of section 501(c) of the
Internal Revenue Code of 1986, as amended.
(2)
Corporation membership, meetings, officers. --
(A) Members of the board of directors of the affiliated
corporation serve terms as prescribed in the bylaws of the
corporation and are selected by the commission in consultation with
the chancellor. The commission shall make all appointments to the
board of directors by majority vote of its members and shall
include the individual votes as a part of the minute record.
(B) Private sector members shall constitute a majority of the
potential membership of the board of directors. Vacancies shall be
filled in such a way that the majority status of private sector
membership is maintained.
(C) By July 1, 2011, and at least biennially thereafter, the
board of directors shall elect a chair from among its members.
§18B-1E-4. Powers and duties of board of directors and corporation.
(a) The primary responsibility of the corporation is to manage
the day to day operations of the Technology Park through
collaboration agreements with the commission. To that end, the
board of directors has the following powers and duties:
(1) To employ an executive director subject to the provisions
of section five of this article;
(2) To approve employment of other staff recommended by the
executive director as being necessary and appropriate to carry out
the purposes of this article and subject to agreements with the
commission;
(3) To serve as fiscal agent and provide additional services,
including, but not limited to, property management, human resources
management, and purchasing;
(4) To meet as a governing body. A corporation created under
this article is exempt from the provisions of section three,
article nine-a, chapter six of this code and from the provisions of
article one, chapter twenty-nine-b of this code;
(5) To receive, purchase, hold, lease, use, sell and dispose
of real and personal property of all classes, subject to the
provisions of subdivision (8) of this subsection and section eight
of this article;
(6) To receive from any source whatsoever grants to be
expended in accomplishing the objectives of this article;
(7) To receive from any source whatsoever aid or contributions
of money, property or other things of value to be held, used and
applied only for the purposes for which the aid or contributions
may be made;
(8) To accept and expend any gift, grant, contribution,
bequest, endowment or other money for the purposes of this article.
Any transfer of endowment or other assets by the commission to the
corporation or by the corporation to the commission for management
shall be formalized in a memorandum of agreement to assure, at a
minimum, that any restrictions governing the future disposition of
funds are preserved. The commission may not transfer ownership of
the Technology Park property to the corporation;
(9) To make, amend and repeal bylaws, rules and its governing
documents consistent with the provisions of this article to
effectuate the purpose and scope of the corporation;
(10) To alter the purpose or scope of the corporation; and
(11) To delegate the exercise of any of its powers except for
the power to approve budgets to the executive director, subject to the directions and limitations contained in its governing
documents.
(b) In addition to the powers and duties provided for in this
section and any other powers and duties that may be assigned to it
by law or agreement, the corporation has other powers and duties
necessary to accomplish the objectives of this article or as
provided by law.
§18B-1E-5. Appointment of executive director; qualifications.
(a) The commission shall set the qualifications for the
position of executive director and shall conduct a thorough search
for qualified candidates. A qualified candidate is one who meets
at least the following criteria:
(1) Possesses a broad understanding of the relationship
between public and private sector research and the need for
cooperation and collaboration among the commission and the research
corporations;
(2) Holds at least a bachelor's degree in a field related to
the duties and responsibilities of the position of executive
director;
(3) Demonstrates strong communication skills and the ability
to work with all types of businesses and industry, government
agencies and higher education institutions; and
(4) Possesses other skills, qualifications or attributes as
the commission considers appropriate or desirable.
(b) The commission shall select the executive director for the
corporation and may not delegate this duty to the chancellor. The
executive director may have dual appointment with the commission,
but may not be a corporation director.
(1) The commission shall appoint the executive director by
majority vote of its members and shall include the vote as a part
of the minute record.
(2) The executive director shall inform the board of directors
and the commission annually of his or her employment status with
any other institution, agency or organization.
(c) The day to day operations of the corporation are under the
control and supervision of the executive director. With the
approval of the board of directors the executive director may
employ staff as necessary to carry out the corporation's purposes
as set forth in this article.
§18B-1E-6. Agreements; required provisions.
(a) The commission may enter into agreements or other
contractual relationships with a corporation that meets the
conditions set forth in section three of this article. Any
agreement shall specify that the corporation is accountable to the
commission for the efficient operations of the Technology Park.
(b) On the effective date of the agreement, the corporation
becomes the fiscal agent for operations of the Technology Park on
behalf of the commission pursuant to terms of the agreement.
(c) If an agreement is terminated, the funds, contributions or
grants paid or held by the corporation and not encumbered or
committed prior to termination shall be distributed as provided for
in the agreement.
(d) If made part of the agreement, the corporation may use
services of both corporation employees and personnel of the
commission. The corporation may pay the costs incurred by the
commission, including personnel funded on grants and contracts, fringe benefits of personnel funded on grants and contracts,
administrative support costs and other costs which may require
reimbursement. The corporation may include as costs any applicable
overhead and fringe benefit assessments necessary to recover the
costs expended by the commission, pursuant to the terms of the
agreement, and the commission may be reimbursed for expenses
incurred by it pursuant to the agreement.
§18B-1E-7. Audits required; financial reports; conflicts of
interest.
(a) The financial statements of the corporation shall be
audited annually by an independent certified public accountant or
firm. Within thirty days of completion, the financial audit report
shall be presented to the corporation's board of directors for
approval, after which a copy of the financial audit and required
statements shall be submitted to the commission.
(b) Notwithstanding any other provision of this code to the
contrary, any officer or employee of the commission, who is not the
executive director of the corporation, may hold an appointment as
a member and as an officer of the corporation board of directors.
§18B-1E-8. No waiver of sovereign immunity; not obligation of the
state.
(a) Nothing contained in this article waives or abrogates in
any way the sovereign immunity of the state or deprives the
commission or any officer or employee of the commission of
sovereign immunity.
(b) Obligations of the board of directors or the corporation
do not constitute debts or obligations of the commission or the
state.
§18B-1E-9. Legislative findings and intent; memorandum of agreement
required; terms and conditions; reports.
(a) The Legislature finds that the Technology Park is a
diversified, multi-tenant research, development and
commercialization park focused on energy, chemicals and other
sciences and technologies for the advancement of education and
economic development in West Virginia. The areas of primary
research and development include energy, chemicals and materials,
and biotechnology. It is the intent of the Legislature to provide
the commission with the tools needed to manage the Technology Park
and facilitate the translation of state investment dollars in
higher education and research into business and economic growth
that will provide tangible benefits for the citizens of the state.
(b) To achieve the goals set forth in this section, it is
essential that the commission include in its research and
development efforts the talents and expertise available at the
doctoral institutions and their research corporations. Therefore,
by July 1, 2011, the commission shall enter into a memorandum of
agreement with the research corporations to delineate the role each
party will play in furthering the goals of research and economic
development as set forth in this article. The agreement shall
focus on collaboration and cooperation among the commission and the
two research corporations.
(1) The agreement is not effective until all parties have
agreed to the included terms and conditions.
(2) The commission shall file a report, including a copy of
the completed agreement and any relevant documents, with the Joint
Committee on Government and Finance and the Legislative Oversight Commission on Education Accountability by July 15, 2011.
(3) The agreement may be amended by mutual consent of the
parties. Within fifteen days of the date a new agreement is
signed, the commission shall file a report as provided in
subdivision (2) of this subsection.
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