ENROLLED
Senate Bill No. 563
(By Senator Craigo)
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[Passed April 12, 1997; in effect from passage.]
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AN ACT to repeal section thirteen, article four, chapter twelve of
the code of West Virginia, one thousand nine hundred thirty- one, as amended; to repeal sections nine-g and eighteen,
article six of said chapter; to repeal sections two and two-a,
article eight, chapter twenty-seven of said code; to repeal
article six-b, chapter forty-four of said code; to amend and
reenact section six, article two, chapter five-f of said code;
to amend and reenact section one, article seven, chapter six
of said code; to amend and reenact section one, article five,
chapter seven of said code; to amend and reenact section
fifteen, article thirteen, chapter eight of said code; to
amend and reenact sections one, two, four, five, seven, eight,
nine, ten, eleven, twelve and thirteen, article one, chapter
twelve of said code; to amend and reenact sections two, three,
four and five, article two of said chapter; to amend and
reenact sections one, one-a, one-b, four, ten-a and thirteen- b, article three of said chapter; to further amend said article by adding thereto two new sections, designated
sections ten-c and ten-d; to amend and reenact sections two,
three, four, six, seven, eight and nine, article four of said
chapter; to further amend said article by adding thereto two
new sections, designated sections three-a and eight-a; to
amend and reenact sections two, four, five and six, article
five of said chapter; to further amend said article by adding
thereto a new section, designated section seven; to amend and
reenact sections one, one-a, two, three, four, five, eight,
nine-c, nine-e, twelve, thirteen, fifteen, sixteen and
nineteen, article six of said chapter; to further amend said
article by adding thereto four new sections, designated
sections six, nine, nine-a and eleven; to amend and reenact
sections two, three, five and six, article six-a of said
chapter; to further amend said chapter by adding thereto a new
article, designated article six-b; to amend and reenact
section three, article three, chapter thirteen of said code;
to amend and reenact section two-a, article three, chapter
fifty of said code; to amend and reenact section seven-a,
article one, chapter fifty-seven of said code; and to amend
and reenact section twelve, article one, chapter fifty-nine of
said code, all relating generally to the financial and
investment procedures in this state; repealing provisions
relating to unreconciled items on bank accounts; repealing
provisions relating to budgeting for state hospitals and local mental health programs; repealing the West Virginia trust fund
act; providing for the consolidation and organization of
certain boards and commissions; authorizing state officials,
officers and employees to be paid twice per month; providing
for collection of moneys due a county, district, municipality,
magistrate court and circuit courts; establishing duties and
responsibilities of the state treasurer in relation to state
depositories; changing the method for the payment and deposit
of taxes and other amounts due the state or any political
subdivision; establishing duties and responsibilities of the
state auditor and treasurer in relation to appropriations,
expenditures and deductions; clarifying the accounts of
treasurer and auditor; providing that the auditor is to
certify condition of revenues and funds of the state;
providing method for signing of checks and warrants; facsimile
signatures and use of mechanical and electrical devices;
providing criminal penalties for violations of signature
authority; comparison of books of auditor and treasurer;
requiring the changing of the office hours of auditor and
treasurer; authorizing the employment of legal counsel;
changing rules relating to absence of auditor or treasurer;
providing for the balancing of state accounts; establishing
the state treasurer's duties and responsibilities in relation
to public securities; providing that the treasurer will act as
financial advisor; providing for the employment or selection of bond counsel; amending the provisions relating to the
repeal of the state board of investments; creating a new
public body corporate called the "West Virginia investment
management board"; providing that all functions and assets of
the board of investments and the West Virginia trust fund are
transferred to the investment management board; terminating
the board of investments and the West Virginia trust fund;
providing for purposes and objects; providing legislative
findings; providing definitions; providing for appointments;
providing that the governor, treasurer and auditor are members
of the board; providing for filling of vacancies; providing
for board meetings and notices of meetings; providing for
beneficiary representatives; providing for management and
control of funds; providing for liability of trustees;
providing for powers of the board; providing for audits and
reports; establishing investment funds; providing for fees for
services; providing for continuation of existing trust;
authorizing investments; providing standards for investments;
providing for loans for industrial development; providing for
standards of care in investment management; providing for
duties of the board; providing for transfers of funds to the
board; providing for loans by the board; providing for debt
information reporting; creating a debt capacity advisory
division; allowing the use of photographic copies in evidence,
for state records, and papers or documents; providing for destruction or transfer to archives of original documents;
destruction of canceled checks; and paid and canceled bonds
and coupons.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article four, chapter twelve of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections nine-g and eighteen, article
six of said chapter be repealed; that sections two and two-a,
article eight, chapter twenty-seven of said code be repealed; that
article six-b, chapter forty-four of said code be repealed; that
section six, article two, chapter five-f of said code be amended
and reenacted; that section one, article seven, chapter six of said
code be amended and reenacted; that section one, article five,
chapter seven of said code be amended and reenacted; that section
fifteen, article thirteen, chapter eight of said code be amended
and reenacted; that sections one, two, four, five, seven, eight,
nine, ten, eleven, twelve and thirteen, article one, chapter twelve
of said code be amended and reenacted; that sections two, three,
four and five, article two of said chapter be amended and
reenacted; that sections one, one-a, one-b, four, ten-a and
thirteen-b, article three of said chapter be amended and reenacted;
that said article be further amended by adding thereto two new
sections, designated sections ten-c and ten-d; that sections two,
three, four, six, seven, eight and nine, article four of said chapter be amended and reenacted; that said article be further
amended by adding thereto two new sections, designated sections
three-a and eight-a; that sections two, four, five and six, article
five of said chapter be amended and reenacted; that said article be
further amended by adding thereto a new section, designated section
seven; that sections one, one-a, two, three, four, five, eight,
nine-c, nine-e, twelve, thirteen, fifteen, sixteen and nineteen,
article six of said chapter be amended and reenacted; and that said
article be further amended by adding thereto four new sections,
designated sections six, nine, nine-a and eleven; that sections
two, three, five and six, article six-a of said chapter be amended
and reenacted; that said chapter be further amended by adding
thereto a new article, designated article six-b; that section
three, article three, chapter thirteen of said code be amended and
reenacted; that section two-a, article three, chapter fifty of said
code be amended and reenacted; that section seven-a, article one,
chapter fifty-seven of said code be amended and reenacted; and that
section twelve, article one, chapter fifty-nine of said code be
amended and reenacted, all to read as follows:
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE
GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-6. Reorganization of boards issuing or incurring debt.
(a) The Legislature finds and declares that boards and commissions empowered to issue bonds, incur indebtedness and
provide financing or financial services for a public purpose may in
some cases benefit the public interest or operate more efficiently
through consolidation of legal, technical and support staff or
services, sharing of office space, consolidation of procedures, and
cooperation to identify circumstances where one entity may provide
services for another, including, but not limited to, circumstances
where one board or commission may finance the programs of another.
On or after the effective date of this section, the treasurer shall
be authorized at the request of the presiding officer of the entity
to provide financial services, provide technical staff services,
provide support staff and services and provide for the sharing of
office space among and between the following entities:
(1) The staff of the municipal bond commission provided for in
article three, chapter thirteen of this code:
Provided, That
nothing in this section shall be construed to limit the
independence and autonomy of the municipal bond commission;
(2) The staff of the hospital finance authority provided for
in article twenty-nine-a, chapter sixteen of this code:
Provided,
That nothing in this section shall be construed to limit the
independence and autonomy of the hospital finance authority; and
(3) The staff of the public energy authority provided for in
article one, chapter five-d of this code.
(b) In furtherance of the goal of increased efficiency and cooperation, the director of the debt management division of the
board of investments and the secretary of the department of
administration are jointly charged with the responsibility of
developing and presenting to the boards and commissions, to the
board of investments, to the state treasurer, to the governor and
to the Legislature recommendations for administrative and statutory
change.
(c) On the effective date of this section, any funds,
equipment, personnel or office facilities associated with those
responsibilities that are transferred from the board of investments
or any other agency, to the treasurer's office shall be transferred
within thirty days of the transfer of those responsibilities.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-1. State officials, officers and employees to be paid twice
per month; effective date.
All full-time and part-time salaried and hourly officials,
officers and employees of the state and the board of trustees of
the university system of West Virginia and the board of directors
of the state college system shall be paid twice per month, and
under the same procedures and in the same manner as the state
auditor currently pays agencies on such basis:
Provided, That on
and after the first day of July, one thousand nine hundred ninety- nine, or any date thereafter, as determined by the auditor, all officials, officers or employees, except elected officials and
employees whose compensation is fixed by statute, shall be paid one
pay cycle in arrears. Any employee whose employment with the state
begins on or after the first day of July, one thousand nine hundred
ninety-nine, as determined by the auditor, shall not receive his or
her first pay until the end of the second regular payroll cycle
after beginning employment. The auditor shall propose a
legislative rule in accordance with article three, chapter twenty- nine-a of this code to determine the manner to implement the
payment of employees in arrears. Nothing contained in this section
is intended to increase or diminish the salary or wages of any
official, officer or employee.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 5. FISCAL AFFAIRS.
§7-5-1. Sheriff ex officio county treasurer.
The sheriff shall be ex officio county treasurer and as such
treasurer shall receive, collect and disburse all moneys due such
county or any district thereof, and shall also receive, collect and
disburse to the treasurer of the county board of education all
school money for the county, unless the sheriff is designated by
the board of education as its treasurer, as provided in section
six, article nine, chapter eighteen of this code. The sheriff
shall keep his office at the courthouse for the county, in a
suitable room or rooms provided for that purpose by the county court (county commission), in which all money and property in his
possession shall be kept, unless deposited by him in a county
depository, in which case an accurate daily deposit account thereof
shall be kept in his office. He shall keep in his office a fair
and accurate account of all receipts and disbursements by him,
showing the time when, from whom, to whom and on what account
received and paid, and he shall so arrange his books that the
amount received and paid on account of separate and distinct funds,
or specific appropriations, shall be exhibited in separate and
distinct accounts, and he shall also keep separate and distinct
accounts for the funds of each fiscal year.
When any money is paid to the sheriff, except for taxes, the
sheriff shall give to the person paying the same duplicate receipts
thereof, stating briefly the fund or account for which paid; one of
which receipts such person shall forthwith deposit with the clerk
of the county court (county commission), who shall, in a well-bound
book to be kept by him in his office for the purpose, charge the
sheriff therewith and preserve such receipt in his office.
The sheriff and his sureties on his official bond shall be
held liable for all public moneys coming into his hands as ex
officio treasurer from every source whether or not the same shall
be deposited in a bank:
Provided, That nothing in this article
prohibits the payment of funds due the county treasurer by credit
or check card. Allowing for the collection of funds by credit or check card shall be at the discretion of the county commission.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 13. TAXATION AND FINANCE.
§8-13-15.Collection of municipal taxes, fines and assessments.
Unless otherwise provided, it shall be the duty of the
treasurer of the municipality or other individual who may be
designated by general law, by charter provisions or by the
governing body, to collect and promptly pay into the municipal
treasury all taxes, fines, special assessments or other moneys due
the municipality. All such taxes, fines, special assessments
(except assessments for permanent or semipermanent public
improvements) and other moneys due the municipality are hereby
declared to be debts owing to the municipality, for which the
debtor shall be personally liable, and the treasurer, or other
individual so designated, may enforce this liability by appropriate
civil action in any court of competent jurisdiction, and is hereby
vested with the same rights to distrain for the same as is vested
in the sheriff for the collection of taxes. Such treasurer or
other individual shall give a bond, conditioned according to law,
in such penalty and with such security as the governing body may
require:
Provided, That nothing in this article shall prohibit the
payment of taxes, fines, special assessments or other moneys due
the municipality by credit or check card. Allowing for the
collection of these funds by credit or check card shall be at the discretion of the municipality.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1. STATE DEPOSITORIES.
§12-1-1. Legislative findings and purpose.
The Legislature finds and declares that the efficient
collection, disbursement, management and investment of public
moneys in the state treasury will benefit the citizens, teachers
and public employees of this state by reducing the costs of
government and providing sources of increased revenue without the
necessity of increased taxation; and to achieve these goals, the
state treasurer shall provide a stable and continuous source of
professional financial management, and shall be given the authority
to develop and maintain modern systems, consistent with sound
financial practices, for the collection, disbursement, management
and investment of such moneys in conjunction with the state
treasurer.
§12-1-2. Depositories for demand deposits; categories of demand
deposits; competitive bidding for disbursement
accounts; maintenance of deposits by state treasurer.
The state treasurer shall designate the state and national
banks in this state which shall serve as depositories for all state
funds placed in demand deposits. Any such state or national bank
shall, upon request to the treasurer, be designated as a state
depository for such deposits, if such bank meets the requirements set forth in this chapter.
Demand deposit accounts shall consist of receipt and
disbursement. Receipt accounts shall be those accounts in which
are deposited moneys belonging to or due the state of West Virginia
or any official, department, board, commission or agency thereof.
Disbursement accounts shall be those accounts from which are
paid moneys due from the state of West Virginia or any official,
department, board, commission, political subdivision or agency
thereof to any political subdivision, person, firm or corporation,
except moneys paid from investment accounts.
Investment accounts shall be those accounts established by the
West Virginia investment management board for the buying and
selling of securities for investment for the state of West Virginia
or any official, department, board, commission or agency thereof or
to meet obligations to paying agents or for paying charges incurred
for the custody, safekeeping and management of such securities
pursuant to the provisions of section five, article five of this
chapter, or for paying the charges of any bank or trust company
acting as paying agent or copaying agent for a bond issue of the
state pursuant to the provisions of section seven-a, article one,
chapter fifty-seven of this code.
The state treasurer shall promulgate rules, in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, concerning depositories for receipt accounts prescribing the selection criteria, procedures, compensation and such other
contractual terms as it considers to be in the best interests of
the state giving due consideration to: (1) The activity of the
various accounts maintained therein; (2) the reasonable value of
the banking services rendered or to be rendered the state by such
depositories; and (3) the value and importance of such deposits to
the economy of the communities and the various areas of the state
affected thereby.
The state treasurer shall select depositories for disbursement
accounts through competitive bidding by eligible banks in this
state. The treasurer shall promulgate rules and regulations, in
accordance with the provisions of article three, chapter twenty- nine-a of this code, prescribing the procedures and criteria for
the bidding and selection. The treasurer shall, in the invitations
for bids, specify the approximate amounts of deposits, the duration
of contracts to be awarded and such other contractual terms as it
considers to be in the best interests of the state, consistent with
obtaining the most efficient service at the lowest cost.
The amount of money needed for current operation purposes of
the state government, as determined by the state treasurer, shall
be maintained at all times in the state treasury, in cash or in
disbursement accounts with banks designated as depositories in
accordance with the provisions of this section. No state officer
or employee shall make or cause to be made any deposits of state funds in banks not so designated.
§12-1-4. Bonds to be given by depositories.
Before allowing any money to be deposited with any eligible
depository in excess of the amount insured by an agency of the
federal government, the state treasurer shall require the
depository to give a collaterally secured bond, in the amount of
not less than ten thousand dollars, payable to the state of West
Virginia, conditioned upon the prompt payment, whenever lawfully
required, of any state money, or part thereof, that may be
deposited with that depository, or of any accrued interest on
deposits. The bond shall be a continuous bond but may be increased
or decreased in amount or replaced by a new bond with the approval
of the state treasurer. The collateral security for the bond shall
consist of bonds of the United States, of the federal land banks,
of the federal home loan banks, or bonds of the state of West
Virginia or of any county, district or municipality of this state,
or other bonds or securities approved by the treasurer. All bonds
so secured are here designated as collaterally secured bonds.
Withdrawal or substitution of any collateral pledged as security
for the performance of the conditions of such bond may be permitted
with the approval in writing of the treasurer. All depository
bonds shall be recorded by the treasurer in a book kept in his or
her office for the purpose, and a copy of the record, certified by
the treasurer, shall be prima facie evidence of the execution and contents of the bond in any suit or legal proceeding. All
collateral securities shall be delivered to or deposited for the
account of the treasurer of the state of West Virginia, and in the
event said securities are delivered to the treasurer, he or she
shall furnish a receipt therefor to the owner thereof. The
treasurer and his or her bondsmen shall be liable to any person for
any loss by reason of the embezzlement or misapplication of the
securities by the treasurer or any of his or her employees, and for
the loss thereof due to his or her negligence or the negligence of
his or her employees; and the securities shall be delivered to the
owner thereof when liability under the bond which they are pledged
to secure has terminated. The treasurer may permit the deposit
under proper receipt of the securities with one or more banking
institutions within or outside the state of West Virginia and may
contract with any such institution for safekeeping and exchange of
any such collateral securities, and may prescribe the rules and
regulations for handling and protecting the collateral securities.
§12-1-5. Limitation on amount of deposits.
The amount of state funds on deposit in any depository in
excess of the amount insured by an agency of the federal government
shall not exceed ninety percent of the value of collateral pledged
on the collaterally secured bond given by the depository. The
value of the collateral shall be determined by the treasurer.
§12-1-7. Rules of the state treasurer; depositors, agreements.
In addition to rules specially authorized in this article, the
West Virginia investment management board and state treasurer are
generally authorized to promulgate any rules necessary to protect
the interests of the state, its depositories and taxpayers. All
rules promulgated shall be subject to the provisions of article
three, chapter twenty-nine-a of this code. Any rules previously
established by the board of public works, the board of investments
or the state treasurer pursuant to this article shall remain in
effect until amended, superseded or rescinded.
The treasurer is also authorized to enter into any depositors'
agreements for the purpose of reorganizing or rehabilitating any
depository in which state funds are deposited, and for the purpose
of transferring the assets, in whole or in part, of any depository
to any other lawful depository when, in the judgment of the
treasurer, the interests of the state will be promoted thereby, and
upon condition that no right of the state to preferred payment be
waived.
§12-1-8. Conflict of interest.
No depository in this state may serve or be eligible for
designation as a state depository if any member of the West
Virginia investment management board, or employee of the
treasurer's office, or a spouse or minor child of that member or
employee, is an officer, director or employee thereof, or owns
greater than two percent of the depository either in his or their own name or beneficially, an interest in such depository. A member
of the board or employee of the treasurer's office shall disclose
the circumstance, if any, in the sworn statement required under the
provisions of section one, article one, chapter six-b of this code.
§12-1-9. Transfer of funds by check or electronic funds transfer;
requirements.
Subject to applicable banking regulations or state law, the
treasurer may transfer funds by check or electronic funds transfer
whenever actually needed to pay the warrants drawn by the auditor
upon the treasury, to equalize deposits or to provide funds to
purchase investments for the account of the state. All checks
drawn for transfer of funds shall have printed or stamped on the
face of same "for transfer of funds only", or if the transfer is
made by electronic funds transfer, the electronic funds transfer
and supporting documents shall be marked "for transfer of funds
only".
§12-1-10. The treasurer to keep accounts with depositories;
settlements with depositories; statements of
depository balances; reconciliation of statements and
records.
The treasurer shall keep in his office or her office a record
showing the account of each depository. Under the account of each
depository an entry shall be made showing the amount and date of
each deposit, the amount and date of each withdrawal and the balance on deposit. The treasurer shall cause the state's account
with each depository to be settled at the end of every month of the
year and the balance in the depository to the credit of the
treasury to be carried forward to the account of the next month.
All the statements and records shall be reconciled monthly and
the reconciled reports shall be kept in the treasurer's office.
The reconciled records for each month shall be kept in the
treasurer's office for a period of five years.
§12-1-11. Reports by depositories to treasurer; discontinuance of
depositories.
Each depository of state funds shall at the end of each
quarter cause its president or cashier to report to the treasurer
the amount of state funds on deposit and the report shall be
verified by the affidavit of the officer making it. The form and
contents of the report shall be prescribed by the treasurer. For
the failure to file the report, or for other good cause, the
treasurer may discontinue any depository as an eligible depository
and cause all state funds to be withdrawn from any depository or
depositories so discontinued. When a depository is discontinued,
the treasurer shall immediately notify such depository of its
discontinuance, and shall immediately withdraw by current checks or
by transfer to another depository or depositories the full amount
of the deposits held by any depository so discontinued. After
discontinuance, it shall be unlawful for the treasurer to deposit any state funds in any depository so discontinued until such time
as the depository may be reinstated to eligibility.
§12-1-12. When treasurer shall make funds available to the
investment management board; depositories outside the
state.
When the funds in the treasury exceed the amount needed for
current operational purposes, as determined by the treasurer, the
treasurer shall make all of such excess available for investment by
the investment management board which shall invest the same for the
benefit of the general revenue fund.
Whenever the funds in the treasury exceed the amount for which
depositories within the state have qualified, or the depositories
within the state which have qualified are unwilling to receive
larger deposits, the treasurer may designate depositories outside
the state, disbursement accounts being bid for in the same manner
as required by depositories within the state, and when such
depositories outside the state have qualified by giving the bond
prescribed in section four of this article, the state treasurer
shall deposit funds therein in like manner as funds are deposited
in depositories within the state under this article.
The treasurer or board of investments may transfer funds to
banks outside the state to meet obligations to paying agents
outside the state and any such transfer must meet the same bond
requirements as set forth in this article.
§12-1-13. Payment of banking services and litigation costs for
prior investment losses.
(a) The treasurer is authorized to pay for banking services,
and services ancillary thereto, by either a compensating balance in
a noninterest-bearing account maintained at the financial
institution providing the services or with a state warrant as
described in section one, article five of this chapter.
(b) The investment management board is authorized to pay for
the investigation and pursuit of claims against third parties for
the investment losses incurred during the period beginning on the
first day of August, one thousand nine hundred eighty-four, and
ending on the thirty-first day of August, one thousand nine hundred
eighty-nine. The payment may be in the form of a state warrant.
(c) If payment is made by a state warrant, the investment
management board at the request of the treasurer is authorized to
establish within the consolidated fund an investment pool which
will generate sufficient income to pay for all banking services
provided to the state and to pay for the investigation and pursuit
of the prior investment loss claims. All income earned by the
investment pool shall be paid into a special account of the
treasurer to be known as the banking services account and shall be
used solely for the purpose of paying for all banking services and
services ancillary to the banking services provided to the state,
for the investigation and pursuit of the prior investment loss claims, amortize the balance in the investment imbalance fund.
ARTICLE 2. PAYMENT AND DEPOSIT OF TAXES AND OTHER AMOUNTS DUE THE
STATE OR ANY POLITICAL SUBDIVISION.
§12-2-2. Itemized record of moneys received for deposit;
regulations governing deposits; credit to state fund;
exceptions.
(a)All officials and employees of the state authorized by
statute to accept moneys due the state of West Virginia shall keep
a daily itemized record of moneys so received for deposit in the
state treasury and shall deposit within twenty-four hours with the
state treasurer all moneys received or collected by them for or on
behalf of the state for any purpose whatsoever. The treasurer
shall be authorized to review the procedures and methods used by
officials and employees authorized to accept moneys due the state
and change such procedures and methods if he or she determines it
to be in the best interest of the state:
Provided, That the
treasurer shall not be authorized to review or amend the procedures
by which the department of tax and revenue accepts moneys due the
state. The treasurer shall propose rules, in accordance with the
provisions of article three, chapter twenty-nine-a of this code
governing the procedure for deposits.
The official or employee making such deposits with the
treasurer shall prepare deposit lists in the manner and upon report
forms as may be prescribed by the treasurer. Certified or receipted copies shall be immediately forwarded by the state
treasurer to the state auditor and to the secretary of
administration. The original of the deposit report shall become a
part of the treasurer's permanent record.
(b) All moneys received by the state from appropriations made
by the Congress of the United States shall be recorded in special
fund accounts, in the state treasury apart from the general
revenues of the state, and shall be expended in accordance with the
provisions of article eleven, chapter four of this code. All
moneys, other than federal funds, defined in section two, article
eleven, chapter four of this code, shall be credited to the state
fund and treated by the auditor and treasurer as part of the
general revenue of the state except the following funds which shall
be recorded in separate accounts:
(1)All funds excluded by the provisions of section six,
article eleven, chapter four of this code;
(2)All funds derived from the sale of farm and dairy
products from farms operated by any agency of the state government
other than the farm management commission;
(3)All endowment funds, bequests, donations, executive
emergency funds, and death and disability funds;
(4)All fees and funds collected at state educational
institutions for student activities;
(5)All funds derived from collections from dormitories, boardinghouses, cafeterias and road camps;
(6)All moneys received from counties by institutions for the
deaf and blind on account of clothing for indigent pupils;
(7)All insurance collected on account of losses by fire and
refunds;
(8)All funds derived from bookstores and sales of blank
paper and stationery, and collections by the chief inspector of
public offices;
(9)All moneys collected and belonging to the capitol
building fund, state road fund, state road sinking funds, general
school fund, school fund, state fund (moneys belonging to counties,
districts and municipalities), state interest and sinking funds,
state compensation funds, the fund maintained by the public service
commission for the investigation and supervision of applications,
and all fees, money, interest or funds arising from the sales of
all permits and licenses to hunt, trap, fish or otherwise hold or
capture fish and wildlife resources and money reimbursed and
granted by the federal government for fish and wildlife
conservation;
(10)All moneys collected or received under any act of the
Legislature providing that funds collected or received thereunder
shall be used for specific purposes.
(c)All moneys, excepted as provided in subdivisions (1)
through (9), inclusive, subsection (b) of this section, shall be paid into the state treasury in the same manner as collections not
so excepted, and shall be recorded in separate accounts to be used
and expended only for the purposes for which the same are
authorized to be collected by law:
Provided, That amounts collected
pursuant to subdivision (10), subsection (b) of this section, which
are found from time to time to exceed funds needed for the purposes
set forth in general law may be transferred to other accounts or
funds and redesignated for other purposes by appropriation of the
Legislature. The gross amount collected in all cases shall be paid
into the state treasury, and commissions, costs and expenses of
collection authorized by general law to be paid out of the gross
collection, including bank and credit or check card fees, are
hereby authorized to be paid out of the moneys collected and paid
into the state treasury in the same manner as other payments are
made from the state treasury.
(d)The state treasurer shall have authority to establish an
imprest fund or funds in the office of any state agency or
institution making proper application to the board. To implement
this authority, the treasurer shall propose rules in accordance
with the provisions of article three, chapter twenty-nine-a of this
code. The treasurer or his or her designee shall annually audit
all funds and prepare a list of all such funds showing the location
and amount as of fiscal year end, retaining the list as a permanent
record of the treasurer until the legislative auditor has completed an audit of the imprest funds of all agencies and institutions
involved.
(e) The treasurer shall be authorized to develop and implement
a centralized receipts processing center. The treasurer may
request the transfer of equipment and personnel from appropriate
state agencies to the centralized receipts processing center in
order to implement the provisions of this subsection:
Provided,
That the governor or appropriate constitutional officer shall have
final authority to authorize the transfer of equipment or personnel
to the centralized receipts processing center from the respective
agency.
§12-2-3. Deposit of moneys by state officials and employees.
All officials and employees of the state authorized by statute
to accept moneys due the state of West Virginia shall deposit those
moneys in the manner the treasurer directs and shall promptly
transmit or cause to be transmitted the deposits, together with a
certificate of deposit, as soon as practicable to the depository in
which they desire to make the deposit, and shall retain and record
the deposit lists. All officials and employees of the state
authorized to accept moneys that they have determined are not funds
due the state pursuant to the provisions of section two of this
article, shall request the treasurer to approve the deposit of the
funds into an approved depository. The request shall be made on
forms and in accordance with procedures as the treasurer establishes. No funds shall be deposited until the written
approval of the treasurer is obtained. The treasurer shall be the
final determining authority as to whether these funds are funds due
or not due the state pursuant to section two of this article. The
treasurer shall on a quarterly basis provide the legislative
auditor with a report of all accounts approved by him.
§12-2-4. Duty of depositories.
Immediately upon the receipt of a deposit from the state, it
shall be the duty of the depository to credit the treasurer with
the amount of the deposit, to date and sign the certificate of
deposit by some legally constituted official of the depository and
promptly transmit the certificate to the treasurer.
§12-2-5. Deposits in correspondent banks of state depositories.
When any payment of money has been made to the state for road
bonds or other purposes outside of the state, the treasurer has the
authority to place the same to the credit of one or more state
depositories in one or more of its correspondent banks located
within or without the state. The treasurer shall, upon making such
a deposit in the correspondent bank, secure from it a proper
certificate of deposit certifying the amount and the name of the
state depository to whose credit the deposit was made by the
treasurer. The treasurer shall forward a copy of the certificate
to the state depository receiving the deposit through its
correspondent bank, and it shall be the duty of the depository immediately to issue to the state of West Virginia a proper
certificate of deposit for the amount deposited, dated the same day
the deposit was made in the correspondent bank. Before making the
deposit the treasurer shall secure written authority from the
depository, designating the name and address of its correspondent
bank or banks in which deposits are to be made and the maximum
amount to be deposited in each. The depository bonds of all state
depositories authorizing and receiving the deposits in their
correspondent banks shall be liable for the deposits the same as if
the deposits had been made with them directly, whether the bonds
are so conditioned or not, and all depository bonds hereafter
issued shall so provide.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS.
§12-3-1. Manner of payment from treasury; form of checks.
Every person claiming to receive money from the treasury of
the state shall apply to the auditor for a warrant for same. The
auditor shall thereupon examine the claim, and the vouchers,
certificates and evidence, if any, offered in support thereof, and
for so much thereof as he or she finds to be justly due from the
state, if payment thereof is authorized by law, and if there is an
appropriation not exhausted or expired out of which it is properly
payable, the auditor shall issue his or her warrant on the
treasurer, specifying to whom and on what account the money
mentioned therein is to be paid, and to what appropriation it is to be charged. The auditor shall present to the treasurer daily
reports on the number of warrants issued, the amounts of the
warrants and the dates on the warrants for the purpose of
effectuating the investment policy of the investment management
board. On the presentation of the warrant to the treasurer, the
treasurer shall ascertain whether there are sufficient funds in the
treasury to pay that warrant, and if he or she finds it to be so,
he or she shall in that case, but not otherwise, endorse his or her
check upon the warrant, directed to some depository, which check
shall be payable to the order of the person who is to receive the
money therein specified; or the treasurer may issue an electronic
funds transfer in payment of the warrant. If the check is not
presented for payment within six months after it is drawn, it shall
then be the duty of the treasurer to credit it to the depository on
which it was drawn, to credit the unclaimed property fund pursuant
to the provisions of article eight, chapter thirty-six of this
code, and immediately notify the auditor to make corresponding
entries on the auditor's books. No state depository may pay a
check unless it is presented within six months after it is drawn
and every check shall bear upon its face the words, "Void, unless
presented for payment within six months." All claims required by
law to be allowed by any court, and payable out of the state
treasury, shall have the seal of the court allowing or authorizing
the payment of the claim affixed by the clerk of the court to his or her certificate of its allowance. No claim may be audited and
paid by the auditor unless the seal of the court is thereto
attached as aforesaid. No tax or fee may be charged by the clerk
for affixing his or her seal to the certificate, referred to in
this section. The treasurer shall propose rules in accordance with
the provisions of article three, chapter twenty-nine-a of this code
governing the procedure for such payments from the treasury.
§12-3-1a. Payment by deposit in bank account.
The auditor may issue his warrant on the treasurer to pay any
person claiming to receive money from the treasury by deposit to
the person's account in any bank or other financial institution by
electronic funds transfer, if the person furnishes to the auditor
written authorization of the method of payment. After the
authorization has been approved by the auditor, it shall be
forwarded to the treasurer for further processing. The auditor
shall prescribe the form of the authorization. This section shall
not be construed to require the auditor to utilize the method of
payment authorized by this section; but the method is authorized
only as an alternative method of payment to persons claiming to
receive money from the treasury. A written authorization furnished
pursuant to this section may be revoked by written notice furnished
to the auditor. Upon the execution of such authorization and its
receipt by the office of the auditor, the payment shall be made in
the manner specified on the form and remitted by the treasurer to the designated bank or other financial institution:
Provided, That
after the first day of July, two thousand two, the state auditor
shall cease issuing paper warrants except for income tax refunds.
After that date all warrants, except for income tax refunds, shall
be issued by electronic funds transfer:
Provided, however, That the
auditor, in his or her discretion, may issue paper warrants on an
emergency basis.
§12-3-1b. Voluntary direct deposits by auditor of salaries of
employees to banks or other financial institutions.
Any officer or employee of the state of West Virginia may
authorize that his net wages be deposited directly to his account
in any bank or other financial institution by electronic funds
transfer. The direct deposits may be authorized on a form provided
by the auditor. Upon execution of such authorization and its
receipt by the office of the auditor, the direct deposits shall be
made in the manner specified on the form and remitted by the
treasurer to the designated bank or other financial institution on
or before the day or days the officer or employee is due his or her
net wages. Direct deposit authorizations may be revoked at any
time thirty days prior to the date on which the direct deposit is
regularly made and on a form to be provided by the auditor:
Provided, That on and after the first day of July, two thousand
two, at the option of the auditor, all wages shall be deposited
directly into the employees' account at any bank or financial institution designated by the employee via electronic funds
transfer.
§12-3-4. No check to be drawn on depository having insufficient
funds; necessity of warrant and check or electronic
funds transfer.
The treasurer shall draw no check on any depository unless
there is money enough in the depository to the credit of the
treasury to pay the check when duly presented for payment. No
depository holding money to the credit of the treasury shall pay
out the same, or any part thereof, except upon a check of the
treasurer endorsed on a warrant of the auditor authorizing a check
or a duly authorized electronic funds transfer drawn in place of
such check.
§12-3-10a. Purchasing card program.
Notwithstanding the provisions of section ten of this article,
payment of claims may be made through the use of the state
purchasing card program authorized by the provisions of this
section. The auditor, in cooperation with the secretary of the
department of administration, may establish a state purchasing card
program for the purpose of authorizing all spending units of state
government to use a purchasing card as an alternative payment
method when making small purchases. The purchasing card program
shall be conducted so that procedures and controls for the
procurement and payment of goods and services are made more efficient. The program shall permit spending units to use a
purchase charge card to purchase goods and services. The amount of
any one purchase made with the purchase charge card shall not
exceed the amount contained in the jointly proposed rules of the
auditor and the purchasing division of the department of
administration proposed in accordance with the provisions of
article three, chapter twenty-nine-a of this code:
Provided, That
purchasing cards may not be utilized for the purpose of obtaining
cash advances, whether the advances are made in cash or by other
negotiable instrument. Purchases of goods and services must be
received either in advance of or simultaneously with the use of a
state purchasing card for payment for those goods or services. The
auditor, by legislative rule, may eliminate the requirement for
vendor invoices and provide a procedure for consolidating multiple
vendor payments into one monthly payment to a charge card vendor.
Selection of a charge card vendor to provide state purchase cards
shall be accomplished by competitive bid. The purchasing division
of the department of administration shall contract with the
successful bidder for provision of state purchase charge cards.
Purchase charge cards issued under the program shall be used for
official state purchases only. The auditor and the director of the
purchasing division of the department of administration shall
jointly propose rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code to govern the implementation of the purchase card program.
§12-3-10c. Transaction fees; disposition of fees.
(a) In order to promote and enhance the use of the state
purchasing card program established by the provisions of section
ten-a of this article and in order to maintain and develop the
fiscal operations and accounting systems of the state, the auditor
and the treasurer may assess joint transaction fees for all
financial documents that will be processed on the central
accounting system. Such transaction fees shall be prescribed by
legislative rule proposed in accordance with article three, chapter
twenty-nine-a of this code and may include the following:
(1) A penalty fee to be assessed against spending units of
state government who submit claims for payment of goods and
services when those claims are authorized to be paid by use of a
state purchasing card and the spending unit has failed to utilize
the state purchasing card; and
(2) A transaction fee to be assessed against spending units of
state government for every transaction received, electronically or
otherwise, by the auditor from the centralized accounting system.
(b) All fees collected under this section shall be deposited
into the "Technology Support and Acquisition Fund" which is hereby
created in the state treasury to be administered by the auditor.
The auditor and treasurer shall use moneys deposited in the fund to
maintain and develop the state purchasing card program, support the fiscal operations of the state, including the state centralized
accounting system, and to acquire and improve the technology
required to support these functions:
Provided, That expenditures
from the fund are authorized from collections and are to be made
only in accordance with an appropriation by the Legislature and in
accordance with the provision of article three of this chapter and
upon fulfillment of the provisions set forth in article two,
chapter five-a of this code:
Provided, however, That for the fiscal
year ending the thirtieth day of June, one thousand nine hundred
ninety-eight, expenditures from the fund may be made from
collections.
§12-3-10d. Purchasing card fund created; expenditures.
All money received by the state pursuant to any agreement with
vendors providing purchasing charge cards shall be deposited in a
special revenue revolving fund designated the "Purchasing Card
Administration Fund", which is hereby created in the state treasury
to be administered by the department of administration. All
expenses of the purchasing division of the department of
administration incurred in the implementation and operation of the
purchasing card program shall be paid from the fund. Expenditures
from the fund shall be made in accordance with appropriations by
the Legislature pursuant to the provisions of article three,
chapter twelve of this code and upon fulfillment of the provisions
of article two, chapter five-a of this code.
§12-3-13b. Voluntary deductions by state auditor from salaries of
employees to pay association dues or fees and to pay
supplemental health and life insurance premiums.
Any officer or employee of the state of West Virginia may
authorize that a voluntary deduction from his net wages be made for
the payment of membership dues or fees to an employee association.
Voluntary deductions may also be authorized by an officer or
employee for any supplemental health and life insurance premium,
subject to prior approval by the auditor. Such deductions shall be
authorized on a form provided by the auditor of the state of West
Virginia and shall state: (a) The identity of the employee; (b)
the amount and frequency of such deductions; and (c) the identity
and address of the association or insurance company to which such
dues shall be paid. Upon execution of such authorization and its
receipt by the office of the auditor, such deductions shall be made
in the manner specified on the form and remitted to the designated
association or insurance company on the tenth day of each month:
Provided, That voluntary other deductions, as approved and
authorized by the auditor, may be made in accordance with rules
proposed by the auditor pursuant to article three, chapter twenty- nine-a of this code:
Provided, however, That deductions shall be
made either once or twice monthly at the option of the employee.
Deduction authorizations may be revoked at any time thirty days
prior to the date on which the deduction is regularly made and on a form to be provided by the office of the state auditor:
Provided
further, That nothing in this section shall interfere with or
remove any existing arrangement for dues deduction between an
employer or any political subdivision of the state and its
employees.
ARTICLE 4. ACCOUNTS, REPORTS AND GENERAL PROVISIONS.
§12-4-2. Accounts of treasurer and auditor; auditor to certify
condition of revenues and funds of the state.
The treasurer shall keep in his office separate accounts with
each depository, and also a summary account for the state, and when
money is paid into the treasury, it shall be charged to the proper
depository and credited to a summary account. The auditor shall
keep in his office separate accounts of the particular heads or
sources of revenue, and a summary account with the treasurer,
beside such individual accounts with officers and persons as may be
necessary, and shall charge every sum of money received for the
state as aforesaid to the treasurer's account, and credit it under
the particular head of revenue to which it properly belongs,
distinguishing especially in distinct accounts the receipts on
account of the capital of the school fund and those on account of
the income of said fund subject to annual distribution. The
auditor shall certify annually to the commissioner of finance and
administration the condition of the state revenues and the several
funds of the state. The certification shall be used by the commissioner in the preparation of a tentative state budget as
required of him by article two, chapter five-a of this code.
§12-4-3. Accounts of appropriations.
The auditor and secretary of administration shall each keep an
account of every appropriation made by law, and of the several sums
drawn thereon, so that the accounts may show at all times the
balance undrawn on each appropriation. The account so kept shall
be compared every month and errors, if any, corrected.
§12-4-3a. Accounts of the auditor.
The auditor shall at all times maintain and have available for
public inspection a report containing monthly balances in the
treasury, which balances shall include, but not be limited to, the
general revenue surplus balance; the general revenue surplus
appropriation account balance; the state general revenue
reappropriated account balance; the state general revenue current
account balance; the total state account balance; and the total
general revenue.
§12-4-4. Accounts of expenditures; signing of checks and
warrants; facsimile signatures and use of mechanical
and electrical devices; forgery; penalty.
When the treasurer issues his check on a depository, he or she
shall credit the same to the account of the depository, and charge
it to the summary account provided for in section two of this
article. The auditor shall keep accounts of the particular heads of expenditures, and, when he or she issues a warrant on the
treasurer, shall credit the treasurer's summary account therewith
and charge the same under the particular head of expenditure to
which it properly belongs, distinguishing especially the
disbursements on account of the capital and the annual income of
the school fund, as directed in section two of this article in
relation to receipts belonging to that fund. All checks when
issued by the treasurer shall bear his or her signature, personally
signed by the treasurer, or by employees as are, in writing,
authorized by the treasurer to make his or her signature thereto,
or bear a facsimile of the treasurer's signature. All warrants
when issued by the auditor shall bear his or her signature,
personally signed by the auditor, or by employees as are, in
writing, authorized by the auditor to make his or her signature
thereto, or bear a facsimile of the auditor's signature. The
signature of the treasurer, or auditor, respectively, may be made,
however, by means of such mechanical or electrical device as the
treasurer, or auditor, respectively, may select. Any mechanical or
electrical device selected shall be safely kept in the respective
offices of the treasurer or auditor so that no one has access to
the device except the treasurer, or the auditor, and the employees
authorized to respectively sign checks or warrants as provided by
this section. If any person, other than the treasurer, or auditor,
respectively, or their respective duly and respectively authorized employees, sign the name of the treasurer or the auditor,
respectively, by the use of any mechanical or electrical device, or
otherwise, or use the facsimile of the signature of either of them,
on any check or warrant, or utter or attempt to employ as true such
forged check or warrant, knowing it to be forged, he or she shall
be guilty of a felony and, upon conviction thereof, shall be
imprisoned not less than two nor more than ten years.
§12-4-6. Comparison of books of auditor and treasurer; monthly
balances.
At the end of every month of the year, the summary account of
the treasurer kept on the books of the auditor's office shall be
compared with the summary account kept by the treasurer, and the
errors, if there be any in either, corrected. The summary account
of the month shall be adjusted and a balance shall be struck
showing the amount then in the treasury. The balance shall be
carried forward in the books of both offices to the account for the
next month.
§12-4-7. Annual report of auditor.
The annual report of the auditor shall be furnished to the
governor by the thirty-first day of December following after the
end of the fiscal year. It shall contain a statement of the
receipts and disbursements, under the proper general heads, during
the preceding fiscal year, and show the balance in the treasury at
the beginning and end of that year. It shall also contain an estimate of the revenue and expenditures for the current year, with
similar statements and estimates respecting the school fund. It
shall show the indebtedness of the state and the balances standing
at the end of the year to the credit of the several unexpired
appropriations, specifying in each case the date when the
appropriation was made. The report shall be accompanied with an
explanation of the amounts of receipts and disbursements and the
balances and estimates reported. In it the auditor shall point out
any defects which may occur to him or her in the revenue laws.
Furthermore, the auditor shall suggest the remedies for those
deficits. If the auditor is of the opinion that the future revenue
is likely to prove insufficient, then the auditor shall recommend
plans for increasing the revenue and suggest new subjects of
taxation, or additional taxes on the old, as he may deem proper.
§12-4-8. Office hours of auditor and treasurer.
The hours for transacting business in the offices of the
auditor and treasurer shall be from eight-thirty in the morning
until five o'clock in the afternoon.
§12-4-8a. Employment of legal counsel.
Notwithstanding the provisions of section two, article three,
chapter five of this code, the auditor and treasurer are hereby
authorized to employ legal counsel:
Provided, That the auditor and
the treasurer, at their discretion, may use the services of the
attorney general.
§12-4-9. Absence of auditor or treasurer.
When it is necessary for either the auditor or treasurer to be
absent, the other shall be informed of the absence. During the
absence, the duties of the officer so absent may be performed by
the auditor's or treasurer's designee respectively. The absent
officer and his sureties shall be liable for any malconduct or
neglect of the person acting in his or her place.
Notwithstanding restrictions which may otherwise be provided
by law concerning membership on any board, agency or commission,
the auditor and treasurer each may designate a representative who
is authorized to act for and on their behalf in any and all matters
relating to those memberships.
ARTICLE 5. PUBLIC SECURITIES.
§12-5-2. Treasurer custodian of securities; charges to companies
for care, exchange and substitution of securities.
(a) The treasurer of this state, unless otherwise expressly
provided by law, shall be custodian of all securities required by
law to be deposited with the state or held in legal custody by the
state, and all departments of this state, commissioners or agents
of the state, who hold any such securities, shall transfer and
deliver the same to the state treasurer to be kept and held by him
as legal custodian thereof until released in the manner provided by
law:
Provided, That the state treasurer shall establish a list of
which securities shall be acceptable securities and notify all state agencies of the contents of that list:
Provided, however,
That the provisions of this subsection shall not apply to the
investment management board.
(b) The treasurer may by formal order of record fix fair and
reasonable charges for the care, custody, exchange and substitution
of securities deposited by insurance companies and companies
issuing annuity contracts. The treasurer shall collect the charges
from the companies and shall deposit the collections in the general
revenue fund:
Provided, That no charge shall be made against any
company depositing securities of the par value of less than three
hundred thousand dollars.
§12-5-4. Treasurer to keep accounts and make collections.
It shall be the duty of the treasurer to keep an accurate
account of all securities received by him or her and collect and
account for the interest as it becomes due and payable and the
principal whenever it is due.
§12-5-5. Protection and handling of securities.
The securities retained in the treasury shall be kept in a
vault. The treasurer shall use due diligence in protecting the
securities against loss from any cause. The treasurer shall
designate certain employees to take special care of the securities.
Only the treasurer and the designated employees may have access to
the securities, and at least two of these persons shall be present
whenever the securities are handled in any manner. The treasurer may contract with one or more banking institutions in or outside
the state for the custody, safekeeping and management of
securities. The contract shall prescribe the rules for the
handling and protection of the securities.
§12-5-6. When notes deemed securities; appraisal.
(a) Whenever, by statute of this state, any public official,
board, commission or department of this state is charged with the
approval of securities required as collateral for the deposit of
public or other funds, or required to be deposited with the state
treasurer, or an investment of capital or surplus or a reserve or
other fund, is required to be maintained consisting of designated
securities deposited with the state treasurer, the securities
shall, at the discretion of that public official, board, commission
or department, include and mean notes executed by the person or
corporation required to make the deposit. The securities shall be
made payable to the state of West Virginia upon demand, or in the
event of the person or corporation, for the benefit of those for
whom the securities are deposited, when the notes are secured by
duly executed deeds of trust on improved, unencumbered real
property located in the state and owned by the person or
corporation executing the notes, the deeds of trust to be approved
by the attorney general of the state as to sufficiency of form and
manner of execution and accompanied by proper abstracts of title
and fire insurance policies equal to the amounts of the notes and recorded among the land records of the county in which the real
property is located. Whenever any note so secured by a deed of
trust on real property owned by any person or corporation is
approved by any public official, board, commission or department of
this state, the real property shall have an appraised value of at
least thirty per centum more than the amount of the note. The
value of the property shall be determined by an appraisal of two
landowners, who are citizens of this state and generally recognized
as experienced real estate appraisers, appointed by the public
official, board, commission or department, charged with the
approval of the securities. The expenses of the appraisal are to
be borne by the person or corporation required to make the deposit,
and each unit of that real property shall have an appraised value
of at least fifty thousand dollars.
For purposes of this section, "improved real property" means
all real property within the limits of an incorporated city or town
on which permanent buildings suitable for residential, industrial
or commercial use are located.
For purposes of this section, real property shall not be
deemed to be encumbered by reason of the existence of instruments
reserving rights-of-way, sewer rights and rights in walls, nor by
reason of building restrictions or other restrictive covenants, nor
by reason of the fact that it, or any part thereof, is subject to
lease under which rents or profits are reserved to the owner:
Provided, That the deed of trust for such investment is a full and
unrestricted first lien upon the property.
(b) Any public official, board, commission or department of
this state charged with the approval of securities required to be
deposited in accordance with this section, shall, at least annually
and more often if deemed proper, appoint a disinterested person or
persons, not exceeding three, to make an examination and appraisal
of the securities deposited to determine if those securities meet
the requirements of the law of this state. The cost of that
examination and appraisal and expenses shall be borne by the person
or corporation required to make the deposits as security:
Provided,
That the total cost and expenses shall not be less than ten dollars
nor more than twenty-five dollars per diem for each person
conducting the examination.
§12-5-7. Treasurer as financial advisor; selection of necessary
parties; employment of bond counsel.
Unless otherwise specifically provided by law, the treasurer
may select or serve as financial advisor for all bonds, notes,
certificates of participation, certificate transactions and all
other forms of securities and indebtedness issued by the state
through its departments, commissions, boards or agencies after the
first day of July, one thousand nine hundred ninety-seven. Unless
otherwise specifically provided by law, the governor shall
coordinate the issuance of all bonds issued by the state and its departments, commissions, boards and agencies, through the
department of administration and the governor shall select all
other necessary parties, including, but not limited to bond,
disclosure or other counsel, underwriters, trustee, verification
agent and any other professionals necessary to effectuate the
issuance of the bonds:
Provided, That this section shall not apply
to the housing development fund created pursuant to article
eighteen, chapter thirty-one of this code; and the hospital finance
authority created pursuant to article twenty-nine-a, chapter
sixteen of this code; the West Virginia economic development
authority created pursuant to article fifteen, chapter thirty-one
of this code; the West Virginia parkways, economic development and
tourism authority created pursuant to article sixteen-a, chapter
seventeen of this code; the West Virginia public energy authority
created pursuant to article one, chapter five-d of this code; the
West Virginia solid waste management board created pursuant to
article three, chapter twenty-two-c of this code; the West Virginia
water development authority created pursuant to article one,
chapter twenty-two-c of this code; the infrastructure and jobs
development council created pursuant to article fifteen-a, chapter
thirty-one of this code; the school building authority created
pursuant to article nine-d, chapter eighteen of this code; and the
governing boards of higher education:
Provided, however, That these
entities shall be governed by those provisions of law specifically designating financial and other professional counsel and personnel
for bond issuances. All selections of professionals shall be
competitive, but the bidding shall not be required to comply with
the provisions of article three, chapter five-a of this code.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-1. Purposes and objects; how article cited.
This article, which may be cited as the "West Virginia
Investment Management Act", is enacted to modernize the procedures
for the investment of funds of the state and its political
subdivisions for the purpose of increasing the investment return of
those funds.
§12-6-1a. Legislative findings.
(a) The Legislature hereby finds and declares that all the
public employees covered by the public employees retirement system,
the teachers retirement system, the West Virginia state police
retirement system, the death, disability and retirement fund of the
division of public safety and the judges' retirement system should
benefit from a prudent and conscientious staff of financial
professionals dedicated to the administration, investment and
management of those employees' and employer's financial
contributions and that an independent board and staff should be
immune to changing political climates and should provide a stable
and continuous source of professional financial investment and
management.
(b) The Legislature finds and declares that teachers and other
public employees throughout the state are experiencing economic
difficulty and that in order to reduce this economic hardship on
these dedicated public employees, and to help foster sound
financial practices, the West Virginia investment management board
is given the authority to develop, implement and maintain an
efficient and modern system for the investment and management of
the state's money. The Legislature further finds that in order to
implement these sound fiscal policies, the West Virginia investment
management board shall operate as an independent board with its own
full-time staff of financial professionals immune to changing
political climates, in order to provide a stable and continuous
source of professional financial management.
(c) The Legislature hereby finds and declares further that
experience has demonstrated that prudent investment provides
diversification and beneficial return not only for public employees
but for all citizens of the state and that in order to have access
to this sound fiscal policy, public employee and employer
contributions to the consolidated pension plan are declared to be
an irrevocable trust, available for no use or purpose other than
for the benefit of those public employees.
(d) The Legislature hereby finds and declares further that the
workers' compensation funds and coal-workers' pneumoconiosis fund
are trust funds to be used exclusively for those workers, miners
and their beneficiaries who have sacrificed their health in the performance of their jobs, and further finds that the assets
available to pay awarded benefits should be prudently invested so
that awards may be paid.
(e) The Legislature hereby finds and declares further that an
independent public body corporate with appropriate governance shall
be the best means of assuring prudent financial management of these
funds under rapidly changing market conditions and regulations.
(f) The Legislature hereby finds and declares further that in
accomplishing this purpose, the West Virginia investment management
board, created and established by this article, is acting in all
respects for the benefit of the state's public employees and
ultimately the citizens of the state, and the West Virginia
investment management board is empowered by this article to act as
trustee for an irrevocable trust created by this article, and to
manage and invest other state funds.
(g) The Legislature hereby finds and declares further that the
standard of care and prudence applied to trustees, the conduct of
the affairs of the irrevocable trust created by this article and
the investment of other state funds is intended to be that applied
to the investment of funds as described in the "uniform prudent
investor act" codified as article six-c of this chapter.
(h) The Legislature further finds and declares that the West
Virginia supreme court of appeals declared the "West Virginia Trust
Fund Act" unconstitutional in its decision rendered on the twenty- eighth day of March, one thousand nine hundred ninety-seven, to the extent that it authorized investments in corporate stock but the
court also recognized that there were other permissible
constitutional purposes of the "West Virginia Trust Fund Act", and
that it is the role of the Legislature to determine those purposes
consistent with the court's decision and the constitution of West
Virginia.
(i) The Legislature hereby further finds and declares that it
is in the best interests of the state and its citizens to create a
new investment management board in order to: (1) Be in full
compliance with the provisions of the constitution of West
Virginia; and (2) protect all existing legal and equitable rights
of persons who have entered into contractual relationships with the
West Virginia board of investments and the West Virginia trust
fund.
§12-6-2. Definitions.
As used in this article unless a different meaning clearly
appears from the context:
(1) "Beneficiaries" means those individuals entitled to
benefits from the consolidated pension plan;
(2) "Board" means the governing body for the West Virginia
investment management board, and any reference elsewhere in this
code to board of investments or West Virginia trust fund means the
board as defined herein;
(3) "Consolidated fund" means the investment fund managed by the board and established pursuant to subsection (a), section eight
of this article;
(4) "Consolidated pension plan" means the public employees
retirement system established in article ten, chapter five of this
code, the teachers retirement system established in article seven- a, chapter eighteen of this code, the West Virginia state police
retirement system established in article two-a, chapter fifteen of
this code, the death, disability and retirement fund of the
department of public safety established in article two, chapter
fifteen of this code, the judges' retirement system established in
article nine, chapter fifty-one of this code, the workers'
compensation fund established in article three, chapter twenty- three of this code, and the coal-workers' pneumoconiosis plan
established in article four-b, chapter twenty-three of this code;
(5) "Local government funds" means the moneys of a political
subdivision, including policemen's pension and relief funds,
firemen's pension and relief funds and volunteer fire departments,
transferred to the board for deposit;
(6) "Participant plan" means any component system, plan or
fund of the consolidated pension plan within the definition set
forth in subdivision (4) of this section;
(7) "Political subdivision" means and includes a county,
municipality or any agency, authority, board, county board of
education, commission or instrumentality of a county or
municipality and regional councils created pursuant to the provisions of section five, article twenty-five, chapter eight of
this code;
(8) "Trustee" means any member serving on the West Virginia
investment management board:
Provided, That in section nine-a of
this article wherein the terms of the trust indenture are set
forth, "trustee" means the West Virginia investment management
board;
(9) "Securities" means all bonds, notes, debentures or other
evidences of indebtedness, and other lawful investment instruments;
and
(10) "State funds" means all moneys of the state which may be
lawfully invested except the "school fund" established by section
four, article XII of the state constitution.
§12-6-3. West Virginia investment management board created; body
corporate; board created; trustees; nomination and appointment
of trustees, qualifications and terms of appointment, advice
and consent; annual and other meetings; designation of
representatives and committees; board meetings with committees
regarding investment policy statement required; open meetings,
qualifications.
(a) There is hereby created the West Virginia investment
management board. The board is created as a public body corporate
and established to provide prudent fiscal administration,
investment and management for the pension funds, workers'
compensation and coal-workers' pneumoconiosis funds and other state funds.
(b) The board shall be governed by a board of trustees,
consisting of thirteen members:
(1) Nominations made to the West Virginia trust fund board and
the West Virginia board of investments shall remain in effect and
are hereby specifically reauthorized and those members shall be
members of the investment management board and shall serve out the
remainder of their respective terms subject to the advice and
consent of the Senate:
Provided, That prior appointments which have
been confirmed by the Senate are hereby specifically reauthorized
without further action of the Senate.
(2) Any appointment is effective immediately upon appointment
by the governor with respect to voting, constituting a quorum,
receiving compensation and expenses, and all other rights and
privileges of the trustee position. All appointees must have
experience in pension management, institutional management or
financial markets, and one trustee must be an attorney experienced
in finance and investment matters, and one trustee must be a
certified public accountant.
(3) The governor, the state auditor and the state treasurer or
their designees shall serve as members of the board. They shall
serve by virtue of their office and are not entitled to
compensation under the provisions of this article. The governor,
the auditor and the treasurer or their designees shall be subject
to all duties, responsibilities and requirements of the provisions of this article, including, but not limited to, the provisions of
subsections (e) and (f), section four of this article.
(c)At the end of each trustee's term, the governor may
reappoint or appoint a successor who shall serve for six-year
terms. No more than six of the ten appointed trustees may belong
to the same political party.
(d) In the event of a vacancy among the trustees, an
appointment shall be made by the governor to fill the unexpired
term.
(e) The governor may remove any trustee, other than trustees
who serve by virtue of their elective office, in case of gross
negligence or misfeasance and may declare that position vacant and
may appoint a person for the vacancy as provided in subsection (d)
of this section.
(f) Each trustee, other than those enumerated in subsection
(b), subdivision (3) of this section, shall be entitled to receive,
and, at the trustee's option, the board shall pay to the trustee,
compensation in the amount of five thousand dollars per year and
additional compensation in the amount of five hundred dollars per
meeting attended by the trustee in excess of the four quarterly
meetings required by this section. In addition, all trustees shall
receive reasonable and necessary expenses actually incurred in
discharging trustee duties pursuant to this article.
(g) The board shall meet quarterly and may include in its
bylaws procedures for the calling and holding of additional meetings. For any quarterly or additional meeting in which the
board shall review or modify its securities list or its investment
objectives pursuant to subsection (f), section twelve of this
article, the board shall give ten days notice in writing to the
designated representative of each participant plan selected
pursuant to subdivision (1), subsection (i) of this section, and
the meeting shall be open to the members and beneficiaries of the
participant plans for that portion of the meeting in which the
board undertakes the review or modification.
(h) The board shall hold an annual meeting within forty-five
days after the issuance of the year-end financial report. The
annual meeting may also serve as a quarterly meeting. The annual
meeting shall be open to the public, and the board shall receive
oral and written comments from representatives, members and
beneficiaries of the participant plans and from other citizens of
the state. At the annual meeting, the board shall adopt a fee
schedule and a budget reflecting fee structures for the year.
(i) Pursuant to subsection (j) of this section, the board
shall meet with committees representing the participant plans to
discuss the board's drafting, reviewing or modifying the written
investment policy of the trust with respect to that committee's
participant plan pursuant to section twelve of this article.
Representatives and committees shall be designated as follows:
(1) The West Virginia consolidated public retirement board
shall promulgate procedural rules by which each pension system named in paragraphs one through five, inclusive, subsection (c),
section nine-a of this article, shall designate an individual
representative of each said pension system, and the West Virginia
workers' compensation commission shall promulgate procedural rules
by which the pneumoconiosis fund and the workers' compensation fund
shall designate an individual representative of each said fund.
(2) On or before the first day of June of each year, the
consolidated public retirement board shall submit in writing to the
board the names of the five designated representatives, and the
workers' compensation commission shall so submit the names of the
two representatives.
(3) Each designated representative shall provide to the board
his or her current address, updated each year on or before the
first day of July, to which address the board shall provide notice
of meetings of the board pursuant to subsection (g) of this
section.
(4) Each designated representative shall submit in writing to
the board on or before the first day of July of each year, the
names of no more than three persons comprising a committee
representing the beneficiaries of that representative's participant
plan.
(j) At its annual meeting, the board shall meet with each of
the seven committees, formed pursuant to subdivision (1),
subsection (i) of this section, for the purpose of receiving input
from the committees regarding the board's drafting, reviewing or modifying its written investment policy statement for investment of
the consolidated pension plan funds. In developing the investment
policy statement, the trustees shall receive each committee's
stated objectives and policies regarding the risk tolerances and
return expectations of each participant plan, with attention to the
factors enumerated in subsection (g), section twelve of this
article, in order to provide for the continuing financial security
of the trust and its participant plans. The board may meet with
the committees or any of them at its quarterly and additional
meetings for the same purpose.
(k) All meetings of the board shall be open to the
representatives of the participant plans as appointed pursuant to
subdivision (1), subsection (i) of this section. The
representatives shall be subject to any rules, bylaws, guidelines,
requirements and standards promulgated by the board. The
representatives shall observe standards of decorum established by
the board. The representatives shall be subject to the same code
of conduct applicable to the trustees and shall be subject to all
board rules and bylaws. The representatives shall also be subject
to any requirements of confidentiality applicable to the trustees.
Each representative shall be liable for any act which he or she
undertakes which violates any rule, bylaw or statute governing
ethical standards, confidentiality or other standard of conduct
imposed upon the trustees or the representatives. Any meeting of
the board may be closed, upon adoption of a motion by any trustee, when necessary to preserve the attorney-client privilege, to
protect the privacy interests of individuals, to review personnel
matters or to maintain confidentiality when confidentiality is in
the best interest of the beneficiaries of the trust.
§12-6-4. Management and control of fund; officers; staff; fiduciary
or surety bonds for trustees; liability of trustees.
(a) The management and control of the board shall be vested
solely in the trustees in accordance with the provisions of this
article.
(b) The governor shall be the chairman of the board and the
trustees shall elect a vice-chairman who may not be a
constitutional officer or his or her designee to serve for a term
of two years. Effective with any vacancy in the vice-chairmanship,
the board shall elect a vice-chairman to a new two-year term. The
vice-chairman shall preside at all meetings in the absence of the
chairman. Annually, the trustees shall elect a secretary, who need
not be a member of the board, to keep a record of the proceedings
of the board.
(c) The trustees shall appoint a chief executive officer of
the board and shall fix his or her duties and compensation. The
chief executive officer shall have five years experience in
investment management with public or private funds within the ten
years next preceding the date of appointment. The chief executive
officer additionally shall have academic degrees, professional
designations and other investment management or investment oversight or institutional investment experience in such
combination as the trustees consider necessary to carry out the
responsibilities of the chief executive officer position as defined
by the trustees.
(d) The trustees shall retain an internal auditor to report
directly to the trustees and shall fix his or her compensation.
The internal auditor shall be a certified public accountant with at
least three years experience as an auditor. The internal auditor
shall develop an internal audit plan, with board approval, for the
testing of procedures and the security of transactions.
(e) Each trustee shall give a separate fiduciary or surety
bond from a surety company qualified to do business within this
state in a penalty amount of one million dollars for the faithful
performance of his or her duties as a trustee of the fund. The
board shall purchase a blanket bond for the faithful performance of
its duties, in the amount of fifty million dollars or in an amount
equivalent to one percent of the assets under management, whichever
is greater. The amount of the blanket bond shall be in addition to
the one million dollar individual bond required of each trustee by
the provisions of this section. The board may require a fiduciary
or surety bond from a surety company qualified to do business in
this state for any person who has charge of, or access to, any
securities, funds or other moneys held by the board, and the amount
of the fiduciary or surety bond shall be fixed by the board. The
premiums payable on all fiduciary or surety bonds shall be an expense of the board.
(f) The trustees and employees of the board are not liable
personally, either jointly or severally, for any debt or obligation
created by the board:
Provided, That the trustees and employees of
the board are liable for acts of misfeasance or gross negligence.
(g) The board shall be exempt from the provisions of sections
seven and eleven, article three, chapter twelve of this code and
article three, chapter five-a of said code:
Provided, That the
trustees and employees of the board shall be subject to purchasing
policies and procedures which shall be promulgated by the board.
The purchasing policies and procedures may be promulgated as
emergency rules pursuant to section fifteen, article three, chapter
twenty-nine-a of this code.
(h) Any employee of the West Virginia trust fund who
previously was an employee of another state agency may return to
the public employees retirement system pursuant to section
eighteen, article ten, chapter five of this code, and may elect to
either: (1) Transfer to the public employee retirement system his
or her employee contributions, with accrued interest, and, if
vested, his or her employer contributions, with accrued interest
and retain as credited state service all time served as an employee
of the West Virginia trust fund; or (2) retain all employee
contributions with accrued interest and, if vested, his or her
employer contributions with interest, and forfeit all service
credit for the time served as an employee of the West Virginia trust fund.
§12-6-5. Powers of the board.
The board may exercise all powers necessary or appropriate to
carry out and effectuate its corporate purposes. The board may:
(1) Adopt and use a common seal and alter the same at
pleasure;
(2) Sue and be sued;
(3) Enter into contracts and execute and deliver instruments;
(4) Acquire (by purchase, gift or otherwise), hold, use and
dispose of real and personal property, deeds, mortgages and other
instruments;
(5) Promulgate and enforce bylaws and rules for the management
and conduct of its affairs;
(6) Notwithstanding any other provision of law, retain and
employ legal, accounting, financial and investment advisors and
consultants;
(7) Acquire (by purchase, gift or otherwise), hold, exchange,
pledge, lend and sell or otherwise dispose of securities and invest
funds in interest earning deposits and in any other lawful
investments;
(8) Maintain accounts with banks, securities dealers and
financial institutions both within and outside this state;
(9) Engage in financial transactions whereby securities are
purchased by the board under an agreement providing for the resale
of the securities to the original seller at a stated price;
(10) Engage in financial transactions whereby securities held
by the board are sold under an agreement providing for the
repurchase of the securities by the board at a stated price;
(11) Consolidate and manage moneys, securities and other
assets of the other funds and accounts of the state and the moneys
of political subdivisions which may be made available to it under
the provisions of this article;
(12) Enter into agreements with political subdivisions of the
state whereby moneys of the political subdivisions are invested on
their behalf by the board;
(13) Charge and collect administrative fees from political
subdivisions for its services;
(14) Exercise all powers generally granted to and exercised by
the holders of investment securities with respect to management of
the investment securities;
(15) Contract with one or more banking institutions in or
outside the state for the custody, safekeeping and management of
securities held by the board;
(16) Make, and from time to time, amend and repeal bylaws,
regulations and procedures not inconsistent with the provisions of
this article;
(17) Hire its own employees, consultants, managers and
advisors as it considers necessary and fix their compensation and
prescribe their duties;
(18) Develop, implement and maintain its own banking accounts and investments;
(19) Do all things necessary to implement and operate the
board and carry out the intent of this article;
(20) Require the state auditor and treasurer to transmit state
funds on a daily basis for investment:
Provided, That money held
for meeting the daily obligations of state government need not be
transferred;
(21) Upon request of the treasurer, transmit funds for deposit
in the state treasury to meet the daily obligations of state
government; and
(22) Notwithstanding any other provision of the code to the
contrary, conduct investment transactions, including purchases,
sales, redemptions and income collections which transactions shall
not be treated by the auditor as recordable transactions on the
state's accounting system.
§12-6-6. Annual audits; reports and information to constitutional
and legislative officers, council of finance and
administration, consolidated public retirement board, workers'
compensation fund and coal-workers' pneumoconiosis fund;
statements and reports open for inspection.
(a) The board shall cause an annual financial and compliance
audit of the consolidated pension fund to be made by a certified
public accounting firm having a minimum staff of ten certified
public accountants and being a member of the American institute of
certified public accountants, and, if doing business in West Virginia, being a member of the West Virginia society of certified
public accountants. The financial and compliance audit shall be
made of the board's books, accounts and records, with respect to
its receipts, disbursements, investments, contracts and all other
matters relating to its financial operations. Copies of the audit
report shall be furnished to the governor, state treasurer, state
auditor, president of the Senate, speaker of the House of
Delegates, council of finance and administration and consolidated
public retirement board.
(b) The board shall produce monthly financial statements for
the consolidated pension fund and the consolidated fund and cause
them to be delivered to each member of the board and the executive
secretary of the consolidated public retirement board as
established in sections one and two, article ten-d, chapter five of
this code and to the commissioner of the bureau of employment
programs as administrator of the workers' compensation fund and
coal-workers' pneumoconiosis fund, as established in section one,
article one, chapter twenty-three of this code, and section one,
article three of said chapter and section seven, article four-b of
said chapter.
(c) The board shall deliver in each quarter to the council of
finance and administration and the consolidated public retirement
board a report detailing the investment performance of the
retirement plans.
(d) The board shall cause an annual performance audit to be made by a nationally recognized fiduciary service. The board shall
furnish copies of the audit report to the governor, state
treasurer, state auditor, president of the Senate, speaker of the
House of Delegates, council of finance and administration and
consolidated public retirement board.
(e) The board shall provide any other information requested in
writing by the council of finance and administration.
(f) All statements and reports with respect to participant
plans required in this section shall be available for inspection by
the members and beneficiaries and designated representatives of the
participant plans.
§12-6-8. Investment funds established; management thereof.
(a) There is hereby established a special investment fund to
be managed by the board and designated as the "consolidated fund".
(b) Each board, commission, department, official or agency
charged with the administration of state funds is hereby authorized
to make moneys available to the board for investment.
(c) Each political subdivision of this state through its
treasurer or equivalent financial officer is hereby authorized to
enter into agreements with the board for the investment of moneys
of the political subdivision. Any political subdivision may enter
into an agreement with any state agency from which it receives
funds to allow the funds to be transferred to their investment
account with the investment management board.
(d) Moneys held in the various funds and accounts administered by the board shall be invested as permitted in section twelve of
this article and subject to the restrictions contained in that
section. The treasurer shall maintain records of the deposits and
withdrawals of each participant and the performance of the various
funds and accounts. The board shall report the earnings on the
various funds under management to the treasurer at such times as
determined by the treasurer. The board shall also establish rules
for the administration of the various funds and accounts
established by this section as it considers necessary for the
administration of the funds and accounts, including, but not
limited to: (1) The specification of minimum amounts which may be
deposited in any fund or account and minimum periods of time for
which deposits will be retained; and (2) creation of reserves for
losses:
Provided, That in the event any moneys made available to
the board may not lawfully be combined for investment or deposited
in the consolidated funds established by this section, the board
may create special accounts and may administer and invest those
moneys in accordance with the restrictions specially applicable to
those moneys:
Provided, however, That the consolidated fund and
the moneys of the consolidated pension plan shall not be combined
or deposited to a single account or fund.
§12-6-9. Fees for service.
The board shall charge fees, as adopted at the annual meeting,
for the reasonable and necessary expenses incurred by the
investment management board in rendering services to the participant plans and the consolidated fund. The fees shall be
subtracted from the total return of the board, and the net return
shall be credited to each of the participant plans and the
consolidated fund. All fees which are dedicated or identified or
readily identifiable to an individual participant plan or the
consolidated fund shall be charged against that plan or fund, and
all other fees shall be charged as a percentage of assets under
management. At its annual meeting, the board shall adopt a fee
schedule and a budget reflecting fee structures
.
§12-6-9a. Trust indenture.
On the effective date of this section, all assets of the
irrevocable trust entered into by the governor on the first day of
July, one thousand nine hundred ninety-six, with the West Virginia
trust fund, inc., acting as the trustee shall constitute the corpus
of an irrevocable trust with the board as its trustee:
Provided,
That the trust shall continue to be subject to the following
provisions:
(a) The Legislature hereby reserves the following rights and
powers:
(1) The right by supplemental agreement to amend, modify or
alter the terms of this trust without consent of the trustee, or
any beneficiary; and
(2) The right to request and receive additional information
from the trustee at any time.
(b) The trustee shall establish a trust for the participant plans specified by this article with the earnings and losses
accounted for and charged individually to each participant plan,
including, but not limited to, the following:
(1) The public employees retirement system;
(2) The teachers retirement system;
(3) The West Virginia state police retirement system;
(4) The death, disability and retirement fund of the
department of public safety;
(5) The judges' retirement system;
(6) The pneumoconiosis fund; and
(7) The workers' compensation fund.
(c) In the administration of the trust created by the trust
indenture, the trustee has the following powers:
(1) To purchase, retain, hold, transfer and exchange, and to
sell, at public or private sale, the whole or any part of the trust
estate upon such terms and conditions as it considers advisable;
(2) To invest and reinvest the trust estate or any part
thereof, in any kind of property, real or personal, including, but
not limited to, mortgage or mortgage participations, common stocks,
preferred stocks, common trust funds, bonds, notes or other
securities, notwithstanding the provisions of articles five and
six, chapter forty-four of this code:
Provided, That
notwithstanding the provisions of this act to the contrary, the
board shall not become a stockholder or owner of any company or
association for any purpose whatsoever unless and until the provisions of section six, article X of the constitution of West
Virginia are amended to permit those investments;
(3) To carry the securities and other property held under the
trust indenture either in the name of the trustee or in the name of
its nominee;
(4) To vote, in person or by proxy, all securities held under
the trust indenture, to join in or to dissent from and oppose the
reorganization, recapitalization, consolidation, merger,
liquidation or sale of corporations or property; to exchange
securities for other securities issued in connection with or
resulting from any transaction; to pay any assessment or expense
which the trustee considers advisable for the protection of its
interest as holder of any such securities; to deposit securities in
any voting trust or with any protective or like committee, or with
a trustee depository; to exercise any option appurtenant to any
securities for the conversion of any securities into other
securities; and to exercise or sell any rights issued upon or with
respect to the securities of any corporation, all upon terms the
trustee considers advisable;
(5) To prosecute, defend, compromise, arbitrate or otherwise
adjust or settle claims in favor of or against the trustee or other
trust estate;
(6) To employ and pay from the trust estate legal and
investment counsel, brokers and such other assistants and agents as
the trustee considers advisable; and
(7) To develop, implement and modify an asset allocation plan
for each participant plan. The asset allocation plans shall be
implemented within the management and investment of the trust fund.
(d) All trust income shall be free from anticipation,
alienation, assignment or pledge by, and free from attachment,
execution, appropriation or control by or on behalf of, any and all
creditors of any beneficiary by any proceeding at law, in equity,
in bankruptcy or insolvency.
(e) The trustee may receive any other property, real or
personal, tangible or intangible, of any kind whatsoever, that may
be granted, conveyed, assigned, transferred, devised, bequeathed or
made payable to it by the state, or by any other person or entity,
for the purposes of the trust created by the trust indenture, and
all such properties shall be held, managed, invested and
administered by the trustee as provided in the trust indenture and
in the "West Virginia Investment Management Act".
(f) The trustee shall promptly cause to be paid to the state
the amounts certified by the governor as necessary for the monthly
payment of benefits to the beneficiaries of the trust.
(g) The trustee shall render an annual accounting to the
governor not more than one hundred twenty days following the close
of the fiscal year of the trust.
(h) The trust will not be invalid by reason of any existing
law or rule against perpetuities or against accumulations or
against restraints upon the power of alienation, but the trust may continue for such time as necessary to accomplish the purposes for
which it is established.
(i) If any provision of the trust indenture is void, invalid
or unenforceable, the remaining provisions are nevertheless valid
and shall be carried into effect.
§12-6-9c. Authorization of additional investments.
Notwithstanding the restrictions which may otherwise be
provided by law with respect to the investment of funds, the board,
all administrators, custodians or trustees of pension funds, each
political subdivision of this state and each county board of
education is authorized to invest funds in the securities of or any
other interest in any investment company or investment trust
registered under the Investment Company Act of 1940, 15 U.S.C.
§80a, the portfolio of which is limited: (i) To obligations issued
by or guaranteed as to the payment of both principal and interest
by the United States of America or its agencies or
instrumentalities; and (ii) to repurchase agreements fully
collateralized by obligations of the United States government or
its agencies or instrumentalities:
Provided, That the investment
company or investment trust takes delivery of the collateral either
directly or through an authorized custodian:
Provided, however,
That the investment company or investment trust is rated within one
of the top two rating categories of any nationally recognized
rating service such as Moody's or Standard & Poor's.
§12-6-9e. Legislative findings; loans for industrial development; availability of funds and interest rates.
(a) The Legislature hereby finds and declares that the
citizens of the state benefit from the creation of jobs and
businesses within the state; that an industrial development loan
program will provide for economic growth and stimulation within the
state; and that loans from pools established in the consolidated
fund will assist in providing the needed capital to assist
industrial development. This section is enacted in view of these
findings.
(b) The board may make available, on a revolving basis, up to
fifteen million dollars from the consolidated fund to loan the West
Virginia economic development authority for industrial development
projects authorized by section seven, article fifteen, chapter
thirty-one of this code:
Provided, That the West Virginia economic
development authority may not loan more than two million dollars
for any one industrial development project. The loans shall be
secured by notes, security interests or bonds issued by the West
Virginia economic development authority evidencing the indebtedness
of the economic development authority to the board.
The notes, security interests or bonds issued by the economic
development authority shall be secured by security equal to or
better than one of the three highest rating grades by an agency
which is nationally known in the field of rating corporate
securities or by a letter of credit guarantee issued by a bank
having an unsecured legal lending limit greater than two million dollars.
(c) The interest rates and maturity dates on the loans to the
West Virginia economic development authority shall be at
competitive rates and maturities as determined by the board. The
board shall determine the financial condition of pools within the
consolidated fund and shall determine if there is sufficient
liquidity within the pools to make the loans specified in this
section.
§12-6-11. Standard of care.
Any investments made under this article shall be made in
accordance with the provisions of the "Uniform Prudent Investor
Act" codified as article six-c of this chapter and shall be further
subject to the following requirements:
(a) Trustees shall discharge their duties with respect to the
consolidated pension plan for the exclusive purpose of providing
benefits to participants and their beneficiaries;
(b) Trustees shall diversify fund investment so as to minimize
the risk of large losses unless, under the circumstances, it is
clearly prudent not to do so;
(c) Trustees shall defray reasonable expenses of investing and
operating the funds under management; and
(d) Trustees shall discharge their duties in accordance with
the documents and instruments governing the trust fund or other
funds under management insofar as such documents and instruments
are consistent with the provisions of this article.
§12-6-12. Limitations on investments.
(a) The board shall not become a stockholder or owner of any
company or association for any purpose whatsoever unless and until
the provisions of section six, article X of the constitution of
West Virginia are amended to provide for those investments. If at
some time, after the effective date of this section, the provisions
of section six, article X of the constitution of West Virginia are
amended to allow the state to become a stockholder in a
corporation, the board shall limit its asset allocation and types
of securities to the following:
(1) For the first twelve months following authorization of the
state to become a stockholder or owner of any corporation, the
board shall hold in equity investments no more than twenty percent
of its total portfolio and no more than twenty percent of the
assets of any individual participant plan or the consolidated fund;
during the thirteenth through and including the twenty-fourth month
following the authorization, the board shall hold in equity
investments no more than forty percent of its total portfolio and
no more than forty percent of the assets of any individual
participant plan or the consolidated fund; and thereafter, the
board shall hold in equity investments no more than sixty percent
of its total portfolio and no more than sixty percent of the assets
of any individual participant plan or the consolidated fund.
(2) The board shall hold in international securities no more
than twenty percent of the consolidated fund or the trust fund and no more than twenty percent of the assets of any individual
participant plan or the consolidated fund.
(3) The board may not at the time of purchase hold more than
five percent of the trust fund or consolidated fund in the equity
securities of any single company or association:
Provided, That if
a company or association has a market weighting of greater than
five percent in the Standard & Poor's 500 index of companies, the
board may hold securities of that equity equal to its market
weighting.
(b) The board shall at all times limit its asset allocation
and types of securities to the following:
(1) The board may not hold more than twenty percent of the
trust fund in commercial paper. Any commercial paper at the time
of its acquisition shall be in one of the two highest rating
categories by an agency nationally known for rating commercial
paper.
(2) At no time shall the board hold more than seventy-five
percent of the trust fund or consolidated fund in corporate debt.
Any corporate debt security at the time of its acquisition shall be
rated in one of the four highest rating categories by a nationally
recognized rating agency.
(3) No security may be purchased by the board unless the type
of security is on a list approved by the board. The board may
modify the securities list at any time, and must give notice of
that action pursuant to subsection (g), section three of this article, and must review the list at its annual meeting.
(c) The board, at the annual meeting provided for in
subsection (h), section three of this article, shall review,
establish and modify, if necessary, the investment objectives of
the individual participant plans, as incorporated in the investment
policy statements of the respective trusts so as to provide for the
financial security of the trust funds giving consideration to the
following:
(1) Preservation of capital.
(2) Diversification.
(3) Risk tolerance.
(4) Rate of return.
(5) Stability.
(6) Turnover.
(7) Liquidity.
(8) Reasonable cost of fees.
§12-6-13. Board as sole agency for investments; exceptions.
All duties vested by law in any agency, commission, official
or other board of the state relating to the investment of moneys,
and the acquisition, sale, exchange or disposal of securities or
any other investment are hereby transferred to the board:
Provided, That neither this section nor any other section of this
article applies to the "board of the school fund" and the "school
fund" established by section 4, article XII of the state
constitution:
Provided,
however, That funds under the control of the municipal bond commission may, in the discretion of the
commission, be made available to the board for investment to be
invested by the commission as provided in article three, chapter
thirteen of this code.
§12-6-15. Consolidated fund audits.
The board shall cause to be conducted an annual external audit
of all investment transactions of the consolidated fund by a
nationally recognized accounting firm:
Provided, That the board
shall on a monthly basis provide to each state agency and any other
entity investing moneys in the consolidated fund an itemized
statement of the agency's or the entity's account in the
consolidated fund. The statement shall include the beginning
balance, contributions, withdrawals, income distributed, change in
value and ending balance.
§12-6-16. Existing investments.
The board shall be vested with ownership of all securities or
other investments lawfully held by the board of investments or the
West Virginia trust fund as of the effective date of this article.
All obligations and assets of the board of investments and the West
Virginia trust fund, inc., shall be vested in the West Virginia
investment management board as of the effective date of this
article.
§12-6-19. Authorization for loans by the board.
(a) The board, upon request of the state building commission,
shall transfer moneys as a loan to the state building commission in an amount not to exceed in the aggregate twenty-one million dollars
for the purposes of financing or refinancing the projects specified
in subsections (b) and (d), section eight, article six, chapter
five of this code. The money borrowed shall bear interest during
the term of the loan at a fixed rate not to exceed the interest
rate on treasury notes, bills or bonds of the same term as the term
of the loan the week of closing on the loan as reported by the
treasury of the United States. Loans made under this subsection
shall be repaid in regular monthly or semiannual payments and shall
be paid in full not later than twenty-five years from the date the
loans are made with terms and conditions mutually agreed upon by
the state building commission and the investment management board.
(b) The board shall upon request of the state building
commission transfer moneys as a loan to the state building
commission in an amount not to exceed in the aggregate eighty
million dollars for the purposes of financing construction of
regional jails, correctional facilities, or building extensions or
improvements to regional jails and correctional facilities. Prior
to the expenditure of any loan proceeds, the regional jail and
correctional facility authority shall certify a list of projects to
the state building commission and the joint committee on government
and finance that are to be funded from loan proceeds. This
certified list cannot thereafter be altered or amended other than
by legislative enactment. Upon receipt of the certified list of
projects, the state building commission shall transfer the loan proceeds to the regional jail and correctional facility authority.
The money borrowed shall bear interest during the term of the loan
at a fixed rate not to exceed the interest rate on treasury notes,
bills or bonds of the same term as the term of the loan the week of
closing on the loan as reported by the treasury of the United
States.
(c) Loans made under this section for the projects specified
in subsection (b) of this section and in subsection (d), section
eight, article six, chapter five of this code, shall be repaid in
annual payments of not less than twelve million dollars per year by
appropriation of the Legislature to the board. The amount
transferred for loans under subsection (a) or (b) of this section
shall not exceed that amount which the board determines is
reasonable given the cash flow needs of the consolidated fund. The
board shall make transfers for loans first for the project
specified in subsection (d), section eight, article six, chapter
five of this code, second for the projects specified in subsection
(b) of this section and third for projects specified in subsection
(b), section eight, article six, chapter five of this code, which
are in imminent danger of default in payment. The board shall take
the steps necessary to increase the liquidity of the consolidated
fund over a period of the next five years to allow for the loans
provided in this section without increasing the risk of loss in the
consolidated fund.
ARTICLE 6A. THE DEBT MANAGEMENT ACT OF 1991.
§12-6A-2. Legislative findings and declaration of public
necessity.
(a)The Legislature hereby finds and declares that efficient
and effective state government requires the procuring, maintaining
and reporting of pertinent information relating to the debt of the
state and its agencies, boards, commissions and authorities. The
state treasurer shall perform the functions and duties necessary to
serve as a central information source concerning the incurrence,
recording and reporting of debt issued by the state, its agencies,
boards, commissions and authorities.
(b)The Legislature hereby finds:
(1)The credit rating and acceptance of bonds, notes,
certificates of participation and other securities and indebtedness
of the state and its spending units have been unstable as a result
of the instability in traditional national and international
markets of goods and services produced by the citizens of the
state.
(2)In order to finance essential capital projects for the
benefit of the citizens of the state at the lowest possible cost,
the state must maintain high levels of acceptance of the
indebtedness of the state and its spending units in the financial
markets.
(3)In order to attain these goals, authorization of state
debt must be based on the ability of the state to meet its total
debt service requirements, in light of other uses of its fiscal resources.
(c)The Legislature hereby further finds that the public
policies and responsibilities of the state as set forth in this
article cannot be fully attained without the creation of a state
division of debt management.
§12-6A-3. Division of debt management created; director.
There is hereby created within the office of the state
treasurer, the division of debt management.
The division shall be under the control of a director to be
appointed by the treasurer and who shall be qualified by reason of
exceptional training and experience in the field of activities of
his respective division and shall serve at the will and pleasure of
the treasurer.
§12-6A-5. Powers and duties.
The division of debt management shall perform the following
functions and duties:
(1)Develop a long-term debt plan including criteria for the
issuance of debt by the state and its spending units and the
continuous evaluation of the current and projected debt of the
state and its spending units.
(2)Evaluate cash flow projections relative to proposed and
existing revenue bond issues.
(3)Act as liaison with the Legislature on all debt matters,
including, but not limited to, new debt issues and the status of
debt issued by the state and its spending units.
(4)Assist the state and its spending units regarding the
issuance of debt if requested.
(5)Establish reporting requirements for the issuance of debt
by the state and its spending units pursuant to the provisions of
this article.
(6)Make and execute contracts and other instruments and pay
the reasonable value of services or commodities rendered to the
division pursuant to those contracts.
(7)Contract, cooperate or join with any one or more other
governments or public agencies, or with any political subdivision
of the state, or with the United States, to perform any
administrative service, activity or undertaking which any such
contracting party is authorized by law to perform and to charge for
providing such services and expend any fees collected.
(8)Do all things necessary or convenient to effectuate the
intent of this article and to carry out its powers and functions.
(9) Provide staff services to the debt capacity advisory
division established in article six-b of this chapter.
§12-6A-6. Debt information reporting.
(a) Within fifteen days following the end of each calendar
quarter, each state spending unit shall provide the division and
the legislative auditor, in the manner provided by this article and
in such form and detail as the state treasurer may by regulation
require, a statement of the total debt of each such state spending
unit incurred during the calendar quarter and owing at the end of such calendar quarter, which statement shall include, but not be
limited to, the name of the state spending unit, the amounts and
types of debt incurred during the calendar quarter and outstanding
at the end of the calendar quarter, the cost and expenses of
incurring the debt, the maturity date of each debt, the terms and
conditions of the debt, the current debt service on the debt, the
current interest rate on the debt, the source of the proceeds
utilized for repayment of the debt, the amounts of repayment during
the calendar quarter, the repayment schedule and the security for
the debt. A state spending unit having no outstanding debt shall
not be required to provide the quarterly report but shall file an
annual report, on forms established by the division of debt
management:
Provided, That the state spending unit shall
immediately notify the division of debt management of any change in
the spending unit's outstanding debt condition.
(b) Not less than thirty days prior to a proposed offering of
debt to be issued by a state spending unit, written notice of such
proposed offering and the terms thereof shall be given to the
division by such state spending unit in the form as the division
may by regulation require. Within thirty days after closing, the
terms shall be reported to the division in the form as the division
may by regulation require.
(c) On or before the thirty-first day of January and the
thirty-first day of July of each year, the treasurer shall prepare
and issue a report of all debt of the state and its spending units and of all proposed debt issuances of which the treasurer has
received notice and shall furnish a copy of such report to the
governor, the president of the Senate, the speaker of the House of
Delegates, the legislative auditor and upon request to any
legislative committee and any member of the Legislature. The
report shall be kept available for inspection by any citizen of the
state. The treasurer shall also prepare updated reports of all
debt of the state and its spending units which shall be available
for inspection at the office of the state treasurer on or before
the thirty-first day of March and the thirtieth day of September of
each year.
ARTICLE 6B. DEBT CAPACITY ADVISORY DIVISION.
§12-6B-1. Purpose.
The purpose of this article is to provide a mechanism by which
necessary information may be provided to the governor and the
Legislature so that they may prudently manage the state's financial
resources by attempting to keep the state within an average to low
range of nationally recognized debt limits. The ratio measurements
which may be taken into consideration in attempting to meet these
limits include, but are not limited to, outstanding net tax
supported debt per capita, net tax supported debt as a percentage
of personal income, net tax supported debt as a percentage of
assessed valuation, and any other criteria that recognized bond
rating agencies use to judge the quality of issues of state bonds.
§12-6B-2. Debt capacity advisory division created.
There is hereby created within the offices of the state
treasurer a debt capacity advisory division.
§12-6B-3. Definitions.
For the purpose of this article:
(a) "Debt" means bonds, notes, certificates of participation,
certificate transactions, capital leases and all other forms of
securities and indebtedness.
(b) "Debt impact statement" means a signed statement from the
treasurer which shall include such information and be in such form,
as determined by the division, for the Legislature or the governor
to make an informed decision concerning the issuance of debt by the
state or its spending units.
(c) "Division" means the debt capacity advisory division
established in this article.
(d) "Net tax supported debt as a percentage of assessed
valuation" means the net tax supported debt, as determined by the
division, divided by the most recently available estimated assessed
valuation of all taxable property in the state by the West Virginia
department of tax and revenue.
(e) "Net tax supported debt as a percentage of personal
income" means the net tax supported debt, as determined by the
division, divided by the most recently available personal income
figures for the state by the West Virginia bureau of employment
programs.
(f) "Net tax supported debt per capita" means the state's net tax supported debt, as determined by the division, divided by the
most recently available population estimate for the state by the
United States department of commerce.
(g) "Spending unit" means any of the state's agencies, boards,
commissions, committees, authorities, or other of its entities with
the power to issue debt and secure such debt, but not including
local political subdivisions of the state.
(h) "Tax supported debt" means: (1) All obligations of the
state or any spending unit to which the state's full faith and
credit is pledged to pay directly or by guarantee (provided that
any such guaranteed obligations shall be included only to the
extent any such obligations are in default); and (2) all
obligations of the state or any agency or authority thereof
extending beyond one year with respect to the lease, occupancy or
acquisition of property which are incurred in connection with debt
financing transactions, including, but not limited to, certificates
of participation, and which are payable from taxes, fees, permits,
licenses and fines imposed or approved by the Legislature.
Tax supported obligations do not include: (1) Any obligations
of the West Virginia housing development fund, the economic
development authority, the hospital finance authority, the West
Virginia parkway authority, the West Virginia public energy
authority, the West Virginia solid waste management board, and the
West Virginia water development authority; (2) revenue anticipation
notes or bonds of the state; or (3) any obligations to the extent that the debt service with respect thereto is reasonably expected
to be offset, as determined by the division, by lease payments,
user fees, federal grants or other payments from some source other
than the general fund. Such payments shall be used expressly for
the purpose of paying debt service.
(i)"Treasurer" means the treasurer of the state of West
Virginia.
§12-6B-4. Powers and duties.
The division shall perform the following functions and duties:
(a) Promulgate rules pursuant to article three, chapter
twenty-nine-a of this code, for the management and conduct of its
affairs;
(b) Annually review the size and condition of the state's tax- supported debt and submit to the governor and to the Legislature,
on or before the first day of October of each year, an estimate of
the maximum amount of new tax-supported debt that prudently may be
authorized for the next fiscal year, together with a report
explaining the basis for the estimate. The estimate shall be
advisory and in no way restrict the governor or the Legislature.
In preparing its annual review and estimate, the division shall, at
a minimum, consider:
(1) The amount of net tax supported debt that, during the next
fiscal year and annually for the following ten fiscal years: (A)
Will be outstanding; and (B) has been authorized but not yet
issued;
(2) Projected debt service requirements during the next fiscal
year and annually for the following ten fiscal years based upon:
(A) Existing outstanding debt; (B) previously authorized but
unissued debt; and (C) projected bond authorizations;
(3) Any information available from the budget section of the
department of administration in connection with anticipated capital
expenditures projected for the next five fiscal years;
(4) The criteria that recognized bond rating agencies use to
judge the quality of state bonds;
(5) Any other factor that the division finds as relevant to:
(A) The ability of the state to meet its projected debt service
requirements for the next fiscal year; (B) the ability of the state
to meet its projected debt service requirement for the next five
fiscal years; and (C) any other factor affecting the marketability
of such bond; and
(6) The effect of authorizations of new tax-supported debt on
each of the considerations of this subsection.
(c) Conduct ongoing review of the amount and condition of
bonds, notes and other security obligations of the state's spending
units: (1) Not secured by the full faith and credit of the state
or for which the Legislature is not obligated to replenish reserve
funds or make necessary debt service payments; (2) for which the
state has a contingent or limited liability or for which the
Legislature is permitted to replenish reserve funds or make
necessary debt service payments if deficiencies occur. When appropriate, the division shall recommend limits on such additional
obligations to the governor and to the Legislature. Such
recommendation is advisory and shall in no way restrict the
governor, the Legislature or the spending unit.
(d) The treasurer may review all proposed offerings of debt,
as defined in this article, submitted to the division of debt
management, as provided in section six, article six-a of this
chapter. The division may also request any additional information
which may be needed to issue an advisory opinion to the governor,
the speaker of the House of Delegates and the president of the
Senate as to the impact of the proposed offering on the state's net
tax-supported debt outstanding and any other criteria which the
treasurer feels may be relevant to the marketability of said
offering and its impact on the state's credit rating. Such
advisory opinion shall in no way restrict the governor, the
Legislature or the spending unit.
(e)Do all things necessary or convenient to effectuate the
intent of this article and to carry out its powers and functions.
CHAPTER 13. PUBLIC BONDED INDEBTEDNESS.
ARTICLE 3. MUNICIPAL BOND COMMISSION.
§13-3-3. Officers; employees; chief administrative officer;
meetings; quorum; compensation and expenses; legal
representation.
(a) The tax commissioner or his or her designee shall be chair
of the commission.
(b)The members of the commission shall appoint a chief
administrative officer and may fix his title and duties.
Notwithstanding the provisions of section two-a, article seven,
chapter six of this code, the commission shall have the authority
to set the compensation of the chief administrative officer. The
chief administrative officer shall serve as secretary to the board
and treasurer of the commission. The chair may designate a board
member to serve as secretary in the absence of the chief
administrative officer. The chair is authorized with the approval
of the commission, to employ other employees and consultants as the
commission deems advisable and fix their compensation and prescribe
their duties.
(c) Appointed members of the commission shall be paid fifty
dollars for each day or substantial portion thereof that they are
engaged in the work of the commission. Each member of the
commission may be reimbursed for all reasonable and necessary
expenses actually incurred in the performance of duties on behalf
of the commission.
(d) The commission shall hold at least three meetings in each
fiscal year, one of which meetings shall be within sixty days of
the end of the fiscal year and shall be the annual meeting. The
meetings shall be held on dates and at places prescribed by the
chair. Additional meetings may be held at the call of the chair or
upon the written request of three members at such time and place as
designated in such call or request. Three members of the commission constitute a quorum.
(e) The chair with the consent of the commission is authorized
to provide or designate legal advisory services to the commission.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2a. Payment of fines by credit card or payment plan;
suspension of licenses for failure to pay fines or
appear or respond.
(a) A magistrate court may accept credit cards in payment of
all costs, fines, forfeitures or penalties. The supreme court of
appeals shall adopt rules regarding the use of credit or check
cards to pay fines and any charges made by the credit card company
may be paid from the gross credit card collections. A magistrate
court may collect a portion of any costs, fines, forfeitures or
penalties at the time the amount is imposed by the court so long as
the court requires the balance to be paid in accordance with a
payment plan which specifies: (1) The number of payments to be
made; (2) the dates on which such payments and amounts shall be
made; and (3) amounts due on such dates.
(b)If any costs, fines, forfeitures, restitution or
penalties imposed or ordered by the magistrate court for hunting or
fishing violations as described in chapter twenty of this code are
not paid in full as directed by the magistrate court, the
magistrate court clerk or, upon a judgment rendered on appeal, the
circuit clerk, shall notify the director of the division of natural resources, of such failure to pay. If any costs, fines,
forfeitures, restitution or penalties imposed by the magistrate
court in a criminal case are not paid as directed by the magistrate
court, the magistrate court clerk or, upon judgment rendered on
appeal, the circuit clerk, shall notify the director of the
division of motor vehicles of the failure to pay. Upon notice, the
division of motor vehicles shall suspend the operator's or
commercial driver's license and the director of the division of
natural resources shall suspend the hunting or fishing license of
the person defaulting on payment until such time that the costs,
fines, forfeitures, restitution or penalties are paid.
(c)If a person charged with any criminal violation of this
code fails to appear or otherwise respond in court, the magistrate
court shall notify the director of the division of motor vehicles
thereof within fifteen days of the scheduled date to appear, unless
the person sooner appears or otherwise responds in court to the
satisfaction of the magistrate. Upon such notice, the division of
motor vehicles shall suspend the operator's or commercial driver's
license of the person failing to appear or otherwise respond in
accordance with the provisions of section six, article three,
chapter seventeen-b of this code.
(d)In every criminal case which involves a misdemeanor
violation, a magistrate may order restitution where appropriate
when rendering judgment.
(e)If all costs, fines, forfeitures, restitution or penalties imposed by a magistrate court and ordered to be paid are
not paid as ordered by the judgment of the magistrate court, the
clerk of the magistrate court shall notify the prosecuting attorney
of the county of such nonpayment and provide the prosecuting
attorney with an abstract of judgment. The prosecuting attorney
shall file the abstract of judgment in the office of the clerk of
the county commission in the county where the defendant was
convicted and in any county wherein the defendant resides or owns
property. The clerk of the county commission shall record and
index the abstracts of judgment without charge or fee to the
prosecuting attorney, and when so recorded, the amount stated to be
owing in the abstract shall constitute a lien against all property
of the defendant.
CHAPTER 57. EVIDENCE AND WITNESSES.
ARTICLE 1. LEGISLATIVE ACTS AND RESOLUTIONS; PUBLIC RECORDS.
§57-1-7a. Use of photographic copies in evidence; state records,
papers or documents; destruction or transfer to
archives of originals; destruction of canceled checks
and paid and canceled bonds and coupons.
(a) Any public officer of the state may, with the approval of
the state records administrator, cause any or all records, papers
or documents kept by him to be reproduced, by any photographic,
photostatic, microphotographic or by similar miniature photographic
process or by nonerasable optical image disks (commonly referred to
as compact disks) or by other records-retention technology approved by the state records administrator. These reproductions by
photographic, photostatic, microphotographic or by similar
miniature photographic process or by nonerasable optical image
disks shall be of durable material and the device used to reproduce
such records on such film shall be one which accurately reproduces
the originals thereof in all details.
The reproductions by photographic, photostatic,
microphotographic or by similar miniature photographic process or
nonerasable optical image disks shall be deemed to be an original
record for all purposes, including introduction in evidence in all
courts or administrative agencies. A transcript, exemplification
or certified copy thereof shall, for all purposes recited herein,
be deemed to be a transcript, exemplification or certified copy of
the original. Whenever reproductions by photographic, photostatic,
microphotographic or by similar miniature photographic process or
nonerasable optical image disks have been made and put in
conveniently accessible fireproof files, and provision has been
made for preserving, examining and using the same, the respective
heads of the departments, divisions, institutions and agencies of
the state may, with the approval of the state records
administrator, cause the records and papers so reproduced by
photographic, photostatic, microphotographic or by similar
miniature photographic process or nonerasable optical image disks,
or any part thereof, to be destroyed; but before any records,
papers or documents are authorized to be destroyed, the state records administrator shall obtain the advice and counsel of the
state historian and archivist, or his designated representative, as
to the desirability of placing the records, papers and documents in
the archives of that department. In the event the administrator is
of the opinion that the record has no further administrative,
legal, fiscal, research or historical value, the administrator may
destroy or otherwise dispose of the record, paper or document if
otherwise permitted to do so after complying with the provisions of
section seventeen, article eight, chapter five-a of this code.
(b) Notwithstanding any other provisions of this code to the
contrary, the state treasurer may at his discretion destroy any
canceled checks of the state after three years have elapsed since
the date of the check, whether or not such checks have been
reproduced by photographic, photostatic, microphotographic or by
similar miniature photographic process or nonerasable optical image
disks:
Provided, That any canceled bonds or interest coupons of any
bond issues of this state in the custody of the treasurer, or for
which the treasurer acts as fiscal agent or paying agent, may at
his discretion be destroyed by one of the two methods below:
Method I - The treasurer shall maintain a permanent record for
the purpose of recording the destruction of bonds and coupons,
showing the following: (1) With respect to bonds, the purpose of
issuance, the date of issue, denomination, maturity date and total
principal amount; and (2) with respect to coupons, the purpose of
issue and date of the bonds to which the coupons appertain, the maturity date of the coupons, and, as to each maturity date, the
denomination, quantity and total amount of coupons.
After recording the specified information, the treasurer shall
have the canceled bonds and coupons destroyed either by burning or
shredding, in the presence of an employee of the treasurer and an
employee of the legislative auditor, each of whom shall certify
that he saw the canceled bonds and coupons destroyed. The
certificates shall be made a part of the permanent record.
Canceled bonds or coupons shall not be destroyed until after one
year from the date of payment.
Method II - The treasurer may contract with any bank or trust
company acting as paying agent or copaying agent for a bond issue
of the state for the destruction of bonds and interest coupons
which have been canceled by the paying agent. The contract shall
require that the paying agent give the treasurer a certificate
containing the same information required by Method I. The
certificate shall be made a part of the treasurer's permanent
records.
Each contract shall also require that the paying agent be
responsible for proper payment and disposition of all bonds and
coupons, and for any duplicate payments to unauthorized persons and
nonpayment to authorized persons occurring as a result of
destruction of bonds or coupons under this section. In addition,
the treasurer may require the paying agent to submit an indemnity
bond, in an amount to be determined by the treasurer, to assure performance of the duties specified in this section. Canceled
bonds or coupons may not be destroyed until one year from the date
of payment.
For purposes of this section, the term "bonds" shall include
interim certificates.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS; LEGAL
ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-12. Payment of fines by credit card or payment plan.
A circuit court may accept credit cards in payment of all
fines, cost, forfeiture, restitution or penalties. The supreme
court of appeals shall adopt rules regarding the use of credit or
check cards to pay fines, and any charges made by the credit card
company may be paid from the gross credit card collections.
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