H. B. 4035
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced January 14, 2004; referred to the
Committee on Education then Finance.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §5A-1-11; to amend
and reenact §18B-1-2 of said code, to amend and reenact
§18B-4-5 of said code; to amend and reenact §18B-5-4 and
§18B-5-9 of said code; to amend said code by adding thereto
two new sections, designated §18B-5-10 and §18B-5-11; to amend
and reenact §18B-7-1 of said code; to amend and reenact
§18B-9-2 and §18B-9-4 of said code; to amend said code by
adding thereto a new section, designated §18B-10-1b; and to
amend and reenact §18B-14-11 of said code, all relating to
increased flexibility in management, finance, purchasing and
personnel practices for higher education and creating a
research challenge fund for research and development
initiatives at institutions of higher education.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §5A-1-11; that §18B-1-2
of said code be amended and reenacted; that §18B-4-5 of said code
be amended and reenacted; that §18B-5-4 and §18B-5-9 of said code
be amended and reenacted; that said code be amended by adding
thereto two new sections, designated §18B-5-10 and §18B-5-11; that
§18B-7-1 of said code be amended and reenacted; that §18B-9-2 and
§18B-9-4 of said code be amended and reenacted; and that said code
by adding thereto a new section, designated §18B-10-1b; and that
§18B-14-11 of said code be amended and reenacted, all to read as
follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 1. DEPARTMENT OF ADMINISTRATION.
§5A-1-11. Technology panel.
(a) The secretary shall convene a panel of individuals
selected by the governor to study and make recommendations
regarding the utilization of state employees in technology and
technology-related positions. The panel shall review issues
affecting the recruitment and retention of employees in state
technology and technology-related positions, including, but not
limited to:
(1)Compensation and benefits in relation to employers other than the state;
(2)Laws, rules, and policies which impede the recruitment
and retention of such employees;
(3)Laws, rules and policies which impede the ability to
hire, promote and compensate such employees based on competency and
proficiency rather than other factors.
(b)The panel shall consist of persons appointed by the
governor from among those individuals representing higher
education, the state division of personnel, the governor's office
of technology, and private industry.
(c)The secretary shall report the findings of the panel and
its recommendation to the governor and Legislature by the first day
of January, two thousand five along with any draft legislation
recommended.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE.
§18B-1-2. Definitions.
The following words when used in this chapter and chapter
eighteen-c of this code have the meaning hereinafter ascribed to
them unless the context clearly indicates different meaning:
(a) Effective the first day of July, two thousand five,
"regional campus" means West Virginia university at Parkersburg,
and West Virginia university institute of technology.
(b) "Governing boards" or "boards" means the institutional
boards of governors created pursuant to subsection (b), section
one, article two-a of this chapter;
(c) "Freestanding community and technical colleges" means
southern West Virginia community and technical college, West
Virginia northern community and technical college, eastern West
Virginia community and technical college, which shall not be
operated as branches or off-campus locations of any other state
institution of higher education;
(d) "Community college" or "community colleges" means
community and technical college or colleges as those terms are
defined in this section;
(e) "Community and technical college," in the singular or
plural, means the freestanding community and technical colleges and
other state institutions of higher education which have defined
community and technical college responsibility districts and
programs in accordance with the provisions of sections four and
six, article three-c of this chapter;
(f) "Community and technical college education" means the
programs, faculty, administration and funding associated with the
mission of community and technical colleges as provided in article
three-c of this chapter;
(g) "Essential conditions" means those conditions which shall be met by community and technical colleges as provided in section
three, article three-c of this chapter;
(h) "Higher education institution" means any institution as
defined by Sections 401(f), (g) and (h) of the federal Higher
Education Facilities Act of 1963, as amended;
(i) "Higher education policy commission," "policy commission"
or "commission" means the commission created pursuant to section
one, article one-b of this chapter;
(j) "Chancellor" means the chief executive officer of the
higher education policy commission employed pursuant to section
five, article one-b of this chapter;
(k) "Institutional operating budget" or "operating budget" for
any fiscal year means an institution's total unrestricted education
and general funding from all sources in a prior fiscal year,
including, but not limited to, tuition and fees and legislative
appropriation, and any adjustments to that funding as approved by
the commission based on comparisons with peer institutions or to
reflect consistent components of peer operating budgets;
(l) "Post-secondary vocational education programs" means any
college-level course or program beyond the high school level
provided through an institution of higher education under the
jurisdiction of a governing board which results in or may result in
the awarding of a two-year associate degree;
(m) "Rule" or "rules" means a regulation, standard, policy or
interpretation of general application and future effect;
(n) For the purposes of this chapter and chapter eighteen-c of
this code, "senior administrator" means the vice chancellor for
administration employed by the chancellor in accordance with
section two, article four of this chapter. The vice chancellor for
administration shall assume all the powers and duties that are
assigned by law to the senior administrator;
(o) "State college" means Bluefield state college, Concord
college, Fairmont state college, Glenville state college, Shepherd
college, West Liberty state college or West Virginia state college
(o) "Concord college" means Concord university, "Fairmont
state college" means Fairmont state university, "Shepherd college"
means Shepherd university, and "West Virginia state college" means
West Virginia state university;
(p) "State institution of higher education" means any
university, college or community and technical college under the
direct or indirect jurisdiction of a governing board as that term
is defined in this section;
(q) "Regional campus" means West Virginia university at
Parkersburg, Potomac state college of West Virginia university, and
West Virginia university institute of technology;
(r) The advisory board previously appointed for the West Virginia graduate college shall be known as the "board of visitors"
and shall provide guidance to the Marshall university graduate
college;
(s) "Institutional compact" means a compact between a state
institution of higher education and the commission, as described in
section two, article one-a of this chapter;
(t) "Peer institutions," "peer group" or "peers" means public
institutions of higher education used for comparison purposes and
selected by the commission pursuant to section three, article one-a
of this chapter;
(u) "Administratively linked community and technical college"
means a community and technical college created pursuant to section
eight, article three-c of this chapter;
(v) "Sponsoring institution" means the state institution of
higher education that maintains an administrative link to a
community and technical college pursuant to section eight, article
three-c of this chapter;
(w) "Collaboration" means entering into an agreement with one
or more providers of education services in order to enhance the
scope, quality, or efficiency of education services;
(x) "Broker" or the act of "brokering" means serving as an
agent on behalf of students, employers, communities or
responsibility areas to obtain education services not offered by a sponsoring institution. These services include courses, degree
programs or other services contracted through an agreement with a
provider of education services either in-state or out-of-state; and
(y) "Joint commission for vocational-technical-occupational
education" or "joint commission" means the commission established
pursuant to article three-a of this chapter.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-5. Campus police officers; appointment; qualifications;
authority; compensation and removal.
The governing boards are hereby authorized to appoint bona
fide residents of this state to act as campus police officers upon
any premises owned or leased by the state of West Virginia and
under the jurisdiction of the governing boards, subject to the
conditions and restrictions hereinafter imposed. Before performing
duties as a campus police officer in any county, each person so
appointed shall first qualify therefor in the same manner as is
required of county police officers by the taking and filing of an
oath of office as required by article one, chapter six of this code
and by posting an official bond as required by article two, chapter
six of this code. A campus police officer shall have authority to
carry a gun and may carry any other dangerous weapon while on duty
if the campus police officer fulfills the certification requirement
for law-enforcement officers under section five, article twenty-nine, chapter thirty of this code.
It is the duty of any person so appointed and qualified as a
campus police officer to preserve law and order only upon those
premises under the jurisdiction of the governing boards and on any
other street, road or thoroughfare, except controlled access and
open country highways, immediately adjacent to or passing through
such premises, to which the person may be assigned by the president
or other administrative head of the state institution of higher
education. For this purpose the campus police officer is a
law-enforcement officer pursuant to the provisions of section one,
article twenty-nine, chapter thirty of this code and, as to
offenses committed within any area so assigned, has and may
exercise all the powers and authority and is subject to all the
requirements and responsibilities of a law-enforcement officer:
Provided, That the assignment of campus police officers to the
duties authorized by this section may not be deemed to supersede in
any way the authority or duty of other peace officers to preserve
law and order on such premises. In addition, the campus police
officers appointed under provisions of this section have authority
to assist local peace officers on public highways in the control of
traffic in and around premises owned by the state of West Virginia
whenever such traffic is generated as a result of athletic or other
activities conducted or sponsored by a state institution of higher education and when such assistance has been requested by the local
peace officers.
The salary of all such campus police officers shall be paid by
the appropriate governing board. Each state institution may
furnish each campus police officer with a firearm and an official
uniform to be worn while on duty and shall furnish and require each
officer while on duty to wear a shield with an appropriate
inscription and to carry credentials certifying to the person's
identity and authority as a campus police officer.
The governing boards may at their will and pleasure revoke the
employment and authority of any campus police officer. The
president or other administrative head of the state institution of
higher education shall report the termination of employment of a
campus police officer by filing a notice to that effect in the
office of the clerk of each county in which the campus police
officer's oath of office was filed.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-4. Purchase or acquisition of materials, supplies,
equipment, services and printing.
(a) The commission and each governing board, through the vice
chancellor for administration, shall purchase or acquire all
materials, supplies, equipment, services and printing required for
that governing board or the commission, as appropriate, and the state institutions of higher education under their jurisdiction.
The commission shall adopt rules governing and controlling
acquisitions and purchases in accordance with the provisions of
this section. The rules shall assure that the commission and the
governing boards:
(1) Do not preclude any person from participating and making
sales thereof to the governing board or to the commission except as
otherwise provided in section five of this article. Provision of
consultant services such as strategic planning services will not
preclude or inhibit the governing boards or the commission from
considering any qualified bid or response for delivery of a product
or a commodity because of the rendering of those consultant
services;
(2) Establish and prescribe specifications, in all proper
cases, for materials, supplies, equipment, services and printing to
be purchased; and
(3) Adopt and prescribe such purchase order, requisition or
other forms as may be required;
(4) Negotiate for and make purchases and acquisitions in such
quantities, at such times and under contract, in the open market or
through other accepted methods of governmental purchasing as may be
practicable in accordance with general law;
(5) Advertise for bids on all purchases exceeding twenty-five thousand dollars, to purchase by means of sealed bids and
competitive bidding or to effect advantageous purchases through
other accepted governmental methods and practices;
(6) Post notices of all acquisitions and purchases for which
competitive bids are being solicited in the purchasing office of
the specified institution involved in the purchase, at least two
weeks prior to making such purchases and ensure that the notice is
available to the public during business hours;
(7) Provide for purchasing in the open market;
(8) Make provision for vendor notification of bid solicitation
and emergency purchasing; and
(9) Provide that competitive bids are not required for
purchases of five thousand dollars or less.
(b) The commission or each governing board, through the vice
chancellor for administration, may issue a check in advance to a
company supplying postage meters for postage used by that board,
the commission and by the state institutions of higher education
under their jurisdiction.
(c) When a purchase is to be made by bid, any or all bids may
be rejected. However, all purchases based on advertised bid
requests shall be awarded to the lowest responsible bidder taking
into consideration the qualities of the articles to be supplied,
their conformity with specifications, their suitability to the requirements of the governing boards, the commission and delivery
terms. The preference for resident vendors as provided in section
thirty-seven, article three, chapter five-a of this code apply to
the competitive bids made pursuant to this section.
(d) The governing boards and the commission shall maintain a
purchase file, which shall be a public record and open for public
inspection. After the award of the order or contract, the
governing boards and the commission shall indicate upon the
successful bid that it was the successful bid and shall further
indicate why bids are rejected and, if the mathematical low vendor
is not awarded the order or contract, the reason therefor. No
records in the purchase file may be destroyed without the written
consent of the legislative auditor. Those files in which the
original documentation has been held for at least one year and in
which the original documents have been reproduced and archived on
microfilm or other equivalent method of duplication may be
destroyed without the written consent of the legislative auditor.
All files, no matter the storage method, shall be open for
inspection by the legislative auditor upon request.
(e) The commission also shall adopt rules to prescribe
qualifications to be met by any person who is to be employed as a
buyer pursuant to this section. These rules shall require that no
person may be employed as a buyer unless that person, at the time of employment, either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any
unit of government or for any business, commercial or industrial
enterprise.
(f) Any person making purchases and acquisitions pursuant to
this section shall execute a bond in the penalty of fifty thousand
dollars, payable to the state of West Virginia, with a corporate
bonding or surety company authorized to do business in this state
as surety thereon, in form prescribed by the attorney general and
conditioned upon the faithful performance of all duties in
accordance with sections four through eight of this article and the
rules of the interim governing board and the commission. In lieu
of separate bonds for such buyers, a blanket surety bond may be
obtained. Any such bond shall be filed with the secretary of
state. The cost of any such bond shall be paid from funds
appropriated to the applicable governing board or commission.
(g) All purchases and acquisitions shall be made in
consideration and within limits of available appropriations and
funds and in accordance with applicable provisions of article two,
chapter five-a of this code, relating to expenditure schedules and
quarterly allotments of funds. Notwithstanding any other provision
of the code to the contrary, only those purchases exceeding the dollar amount for competitive sealed bids in this section are
required to be encumbered and they may be entered into the state's
centralized accounting system by the staff of the commission or the
governing boards to satisfy the requirements of article two,
chapter five-a, and more specifically, sections twenty-six, twenty
seven and twenty eight to determine whether the amount of the
purchase is within the commission's or governing board's quarterly
allotment, is in accordance with the approved expenditure schedule,
and otherwise conforms to the provisions of article two, chapter
five-a.
(h) The governing boards and the commission may make
requisitions upon the auditor for a sum to be known as an advance
allowance account, in no case to exceed five percent of the total
of the appropriations for the governing board or the commission,
and the auditor shall draw a warrant upon the treasurer for such
accounts. All advance allowance accounts shall be accounted for by
the applicable governing board or commission once every thirty days
or more often if required by the state auditor.
(i) Contracts entered into pursuant to this section shall be
signed by the applicable governing board or the commission in the
name of the state and shall be approved as to form by the attorney
general. A contract which requires approval as to form by the
attorney general and for which the attorney general has not responded within fifteen days of presentation of the contract, the
contract shall be considered approved. A contract or a change
order for that contract and notwithstanding any other provision of
this code to the contrary, associated documents such as performance
and labor/material payments, bonds and certificates of insurance
which use terms and conditions or standardized forms previously
approved by the attorney general and do not make substantive
changes in the terms and conditions of the contract do not require
approval by the attorney general. The attorney general shall make
a list of those changes which he or she deems to be substantive and
the list, and any changes thereto, shall be published in the state
register. A contract that exceeds fifteen thousand dollars the
dollar amount for competitive sealed bids in this section shall be
filed with the state auditor. If requested to do so, the governing
boards or the commission shall make all contracts available for
inspection by the state auditor. The governing board or the
commission, as appropriate, shall prescribe the amount of deposit
or bond to be submitted with a bid or contract, if any, and the
amount of deposit or bond to be given for the faithful performance
of a contract.
(j) If the governing board or the commission purchases or
contracts for materials, supplies, equipment, services and printing
contrary to the provisions of sections four through seven of this article or the rules pursuant thereto, such purchase or contract
shall be void and of no effect.
(k) Any governing board or the commission, as appropriate, may
request the director of purchases to make available, from time to
time, the facilities and services of that department to the
governing boards or the commission in the purchase and acquisition
of materials, supplies, equipment, services and printing and the
director of purchases shall cooperate with that governing board or
the commission, as appropriate, in all such purchases and
acquisitions upon such request.
(l) Each governing board or the commission, as appropriate,
shall permit private institutions of higher education to join as
purchasers on purchase contracts for materials, supplies, services
and equipment entered into by that governing board or the
commission. Any private school desiring to join as purchasers on
such purchase contracts shall file with that governing board or the
commission an affidavit signed by the president of the institution
of higher education or a designee requesting that it be authorized
to join as purchaser on purchase contracts of that governing board
or the commission, as appropriate. The private school shall agree
that it is bound by such terms and conditions as that governing
board or the commission may prescribe and that it will be
responsible for payment directly to the vendor under each purchase contract.
(m) Notwithstanding any other provision of this code to the
contrary, the governing boards and the commission, as appropriate,
may make purchases from cooperative buying groups, consortia, the
federal government or from federal government contracts if the
materials, supplies, services, equipment or printing to be
purchased is available from cooperative buying groups, consortia,
the federal government or from a federal contract and purchasing
from the cooperative buying groups, consortia, federal government
or from a federal government contract would be the most financially
advantageous manner of making the purchase. Notwithstanding any
other provision of this code to the contrary, the state board of
education may make purchases under any contract entered into by the
commission or governing boards pursuant to this subsection or any
other section of this code if doing so would be the most
financially advantageous manner of making the purchase. Any such
purchases by the state board of education would be governed by the
provisions of this article.
(n) An independent performance audit of all purchasing
functions and duties which are performed at any institution of
higher education shall be performed each fiscal year. The joint
committee on government and finance shall conduct the performance
audit and the governing boards and the commission, as appropriate, shall be responsible for paying the cost of the audit from funds
appropriated to the governing boards or the commission.
(o) The governing boards shall require each institution under
their respective jurisdictions to notify and inform every vendor
doing business with that institution of the provisions of section
fifty-four, article three, chapter five-a of this code, also known
as the "prompt pay act of 1990."
(p) Consultant services, such as strategic planning services,
may not preclude or inhibit the governing boards or the commission
from considering any qualified bid or response for delivery of a
product or a commodity because of the rendering of those consultant
services.
(q) After the commission has granted approval for
lease-purchase arrangements by the governing boards, a governing
board may enter into lease-purchase arrangements for capital
improvements, including equipment. Any lease-purchase arrangement
so entered shall constitute a special obligation of the state of
West Virginia. The obligation under a lease-purchase arrangement
so entered may be from any funds legally available to the
institution and must be cancelable at the option of the governing
board or institution at the end of any fiscal year. The
obligation, any assignment or securitization thereof, shall never
constitute an indebtedness of the state of West Virginia or any department, agency or political subdivision thereof, within the
meaning of any constitutional provision or statutory limitation,
and may not be a charge against the general credit or taxing powers
of the state or any political subdivision thereof; and such facts
shall be plainly stated in any lease-purchase agreement. Further,
the lease-purchase agreement shall prohibit assignment or
securitization without consent of the lessee and the approval of
the attorney general of West Virginia. Proposals for any
arrangement must be requested in accordance with the requirements
of this section and any rules or guidelines of the commission. In
addition, any lease-purchase agreement which exceeds one hundred
thousand dollars total shall be approved by the attorney general of
West Virginia. The interest component of any lease-purchase
obligation shall be exempt from all taxation of the state of West
Virginia, except inheritance, estate and transfer taxes. It is the
intent of the Legislature that if the requirements set forth in the
internal revenue code of one thousand nine hundred eighty-six, as
amended, and any regulations promulgated pursuant thereto are met,
the interest component of any lease-purchase obligation also shall
be exempt from the gross income of the recipient for purposes of
federal income taxation and may be designated by the governing
board or the president of the institution as a bank-qualified
obligation.
(r) Notwithstanding any other provision of this code to the
contrary, the commission and the governing boards have the
authority, in the name of the state, to lease, or offer to lease,
as lessee, any grounds, buildings, office or other space in
accordance with this paragraph and as provided below:
(1) The commission and the governing boards have sole
authority to select and to acquire by contract or lease all
grounds, buildings, office space or other space, the rental of
which is necessarily required by the commission or governing boards
for the institutions under their jurisdiction. The chief executive
officer of the commission or an institution shall certify the
following:
(A) That the grounds, buildings, office space or other space
requested is necessarily required for the proper function of the
commission or institution;
(B) That the commission or institution will be responsible for
all rent and other necessary payments in connection with the
contract or lease; and
(C) That satisfactory grounds, buildings, office space or
other space is not available on grounds and in buildings now owned
or leased by the commission or the institution.
Before executing any rental contract or lease, the commission
or a governing board shall determine the fair rental value for the rental of the requested grounds, buildings, office space or other
space, in the condition in which they exist, and shall contract for
or lease the premises at a price not to exceed the fair rental
value.
(2) The commission and the governing boards are authorized to
enter into long-term agreements for buildings, land and space for
periods longer than one fiscal year, but not to exceed forty years.
Any purchases of real estate, any lease-purchase agreement and any
construction of new buildings or other exceeding one million
dollars for acquisition of buildings, office space or grounds,
resulting therefrom made pursuant to the provisions of this
subsection shall be presented by the policy commission to the joint
committee on government and finance for prior review. Any such
lease shall contain, in substance, all the following provisions:
(A) That the commission or the governing board, as lessee,
have the right to cancel the lease without further obligation on
the part of the lessee upon giving thirty days' written notice to
the lessor at least thirty days prior to the last day of the
succeeding month;
(B) That the lease shall be considered canceled without
further obligation on the part of the lessee if the Legislature or
the federal government fails to appropriate sufficient funds
therefor or otherwise acts to impair the lease or cause it to be canceled; and
(C) That the lease shall be considered renewed for each
ensuing fiscal year during the term of the lease unless it is
canceled by the commission or the governing board before the end of
the then-current fiscal year.
(3) The commission or an institution which is granted any
grounds, buildings, office space or other space leased in
accordance with this section may not order or make permanent
changes of any type thereto, unless the commission or the governing
board, as appropriate, has first determined that the change is
necessary for the proper, efficient and economically sound
operation of the institution. For purposes of this section, a
"permanent change" means any addition, alteration, improvement,
remodeling, repair or other change involving the expenditure of
state funds for the installation of any tangible thing which cannot
be economically removed from the grounds, buildings, office space
or other space when vacated by the institution.
(4) Leases and other instruments for grounds, buildings,
office or other space, once approved by the commission or governing
board, may be signed by the chief executive officer of the
commission or the institution. Any lease or instrument exceeding
one hundred thousand dollars annually shall be approved as to form
by the attorney general. A lease or other instrument for grounds, buildings, office or other space that contains a term, including
any options, of more than six months for its fulfillment shall be
filed with the state auditor.
(5) The commission may promulgate rules it considers necessary
to carry out the provisions of this section.
§18B-5-9. Higher education fiscal responsibility.
(a) The commission shall ensure the fiscal integrity of any
electronic process conducted at its offices or at any institution
using best business and management practices.
(b) The commission shall implement a process whereby, to the
maximum extent practicable, employees of the commission and any
state institution of higher education receive their wages via
electronic transfer or direct deposit.
(c) Notwithstanding the provisions of section ten-a, article
three, chapter twelve of this code, the amount of any purchase made
with a purchasing card used by the commission or an institution may
not exceed five thousand dollars. Subject to approval of the
purchasing division of the department of administration, a Any
routine, regularly-scheduled payment, including, but not limited
to, utility payments and real property rental fees may exceed this
amount limit. The commission or an institution may use a
purchasing card for travel expenses directly related to the job
duties of the traveling employee. Traveling expenses may include registration fees, and airline and other transportation
reservations, if approved by the administrative head of the
institution. Traveling expenses may not include fuel or food
purchases. The commission and each institution shall maintain one
purchase card for use only in and for situations declared an
emergency by the president of the institution and approved by the
chancellor. Such emergencies may include, but are not limited to,
partial or total destruction of a campus facility; loss of a
critical component of utility infrastructure; heating, ventilation,
or air conditioning failure in an essential academic building; loss
of campus road, parking lot or campus entrance; or a local,
regional, or national emergency situation that has a direct impact
on the campus.
(d) Notwithstanding the provisions of section ten-f, article
three, chapter twelve of this code, or any other provision of this
code or law to the contrary, by the thirtieth day of June, two
thousand four, the auditor shall accept any receiving report
submitted in a format utilizing electronic media and from the
effective date of this section shall conduct any audit or
investigation of the commission or any institution at its own
expense and at no cost to the commission or institution.
(e) The Legislature finds that an emergency exists, and,
therefore, by the first day of July, two thousand three, the commission shall file an emergency legislative rule in accordance
with the provisions of article three-a, chapter twenty-nine-a of
this code. The rule shall provide for institutions individually or
cooperatively to maximize their use of any of the following
purchasing practices that are determined to provide a financial
advantage:
(1) Bulk purchasing;
(2) Reverse bidding;
(3) Electronic marketplaces; and
(4) Electronic remitting.
(f) Each institution shall establish a consortium with at
least one other institution in the most cost-efficient manner
feasible, to consolidate the following operations and student
services:
(1) Payroll operations;
(2) Human resources operations;
(3) Warehousing operations;
(4) Financial transactions;
(5) Student financial aid application, processing and
disbursement;
(6) Standard and bulk purchasing; and
(7) Any other operation or service appropriate for
consolidation as determined by the commission.
(g) An institution may charge a fee to each institution for
which it provides a service or performs an operation. The fee rate
shall be in the best interest of both the institution being served
and the providing institution, as approved by the commission.
(h) Any community and technical college, college and
university may provide the services authorized by this section for
the benefit of any governmental body or public or private
institution.
(i) Commencing with the two thousand four fall academic term,
each institution shall reduce its number of low-enrollment sections
of introductory courses. To the maximum extent practicable,
institutions shall use distance learning to consolidate the course
sections. The commission shall report the progress of the
reduction to the legislative oversight commission on education
accountability by the first day of December, two thousand four.
(j) An institution shall use its natural resources and
alternative fuel resources to the maximum extent feasible. The
institution may supply the resources for its own use and for use by
any other institution. The institution may supply the resources to
the general public at fair market value. An institution shall
maximize all federal or grant funds available for research
regarding alternative energy sources, and may develop research
parks to further the purpose of this section and to expand the economic development opportunities in the state.
(k) Any cost-savings realized or fee procured or retained by
an institution pursuant to implementation of the provisions of this
section shall be retained by the institution.
(l) In assuring the fiscal integrity of processes implemented
under this section, at a minimum, the commission has the following
responsibilities:
(1) To conduct a performance audit of the policies, procedures
and results of the procurement of goods and services by the state
institutions of higher education;
(2) To make progress reports on the implementation of this
section to the legislative oversight commission on education
accountability throughout the two thousand three interim meetings
period;
(3) To make a comprehensive report to the legislative
oversight commission on education accountability by the first day
of December, two thousand three, on the results of the performance
audit, together with any recommendations for additional actions
that might be taken to improve the efficiency, effectiveness and
economy of the administrative operations of the state institutions
of higher education and the commission.
(m) The commission shall report annually to the legislative
oversight commission on education accountability regarding any savings achieved by implementing the provisions of this section.
§18B-5-10. Research challenge fund.
There is hereby established in the state treasury a special
revenue fund know as the "research challenge fund." Moneys
deposited in this fund shall be administered by the higher
education policy commission.
Twenty-five percent of the moneys deposited in this fund shall
be used to fund coal research and development projects at
institutions of higher education located in this state, which
research includes, but is not limited to, carbon sequestration and
carbon technology research and development projects.
The remainder of the moneys deposited in this fund shall be
used to fund other research and development projects at
institutions of higher education in this state.
§18B-5-11. Allocation of research challenge appropriations.
The policy commission shall utilize the recommendations of the
EPSCoR State Advisory Council in its allocation of appropriations
made to the research challenge fund and in its development of
procedures for competitive application and review of proposals for
funding. The research challenge is a critical component in the
state's strategic plan for economic development and the
contribution of higher education in the economic health of the
state, and the EPSCoR State Advisory Council is well qualified, by virtue of its research-oriented mission and membership, to advise
the policy commission in the allocation of research challenge
funding.
(a) The objectives of the Research Challenge are to:
(1) Increase the research capacity of institutions of higher
education and the competitiveness of these institutions to apply
for external funding;
(2) Stimulate the development of research and research
products that are directly applicable in improving the economic
competitiveness of existing West Virginia industries and the
development of new business and jobs in the state;
(3) Leverage limited state resources with private and federal
funds to support projects and activities directly related to
economic development by requiring matching funds and cooperative
agreements with external partners;
(4) Increase the production of undergraduate and graduate
students of programs in the sciences, technology, engineering, and
mathematics, with special attention to emerging disciplines such as
biometrics; and
(5) Hold institutions more accountable for the success of
research projects funded under this program with the expectation
that state support will be phased out and the project or activity
will be terminated if it is unable to generate ongoing external support.
(b) The priorities for the Research Challenge shall be:
(1) Research on energy generation, distribution and
utilization that builds on the state's existing energy research
strengths, related research products, and technology transfer
programs shall receive twenty-five percent of the appropriation.
(2) Research, education, and outreach conducted by the EPSCoR
program. This federal program is recognized by the National
Science Foundation as the state's primary entity for developing the
research capacity that is so important to the state's economic and
educational development.
(3) Research projects that are related to the economic
development of the state, and that have significant potential to
attract participation and funding from industrial, federal, or
foundation partners.
(4) Collaborative projects between higher education and public
education to improve science and mathematics education.
(5) Graduate education in science (including medical
education), technology, engineering, and mathematics. The
allocation shall be used for the increase in doctoral students and
programs at West Virginia University and Marshall University in
these fields.
(6) Recruitment of eminent scholars to strengthen research capacity and competitiveness for external funding.
(c) The policy commission shall report to the legislative
oversight committee on educational accountability annually on the
results of the projects and activities funded by the Research
Challenge appropriation.
(d) The priorities established in section (b) of this section
shall be reviewed biannual by the policy commission and the EPSCoR
Advisory Committee beginning in two thousand six. The policy
commission shall include any recommended adjustments in its budget
request for the two thousand seven budget.
ARTICLE 7. PERSONNEL GENERALLY.
§18B-7-1. Seniority for full-time classified personnel; seniority
to be observed in reducing work force; preferred
recall list; renewal of listing; notice of vacancies.
(a) Definitions for terms used in this section are in
accordance with those provided in section two, article nine of this
chapter except that the provisions of this section shall apply only
to classified employees of a governing board whose employment, if
continued, accumulates to a minimum total of one thousand forty
hours during a calendar year and extends over at least nine months
of a calendar year: Provided, That this section also applies to
any classified employee of a governing board who is involuntarily
transferred to a position in nonclassified status for which he or she did not apply: Provided, however, That any classified employee
of a governing board involuntarily transferred to a position in
nonclassified status may only exercise the rights set out in this
section for positions equivalent to or lower than the last job
class the employee held: Provided further, That because of fiscal
constraints and the need to maintain and improve services to
students and the citizens of this state during the anticipated
period of those fiscal constraints, the provisions of this section
shall not apply from the first day of July, two thousand four
through the thirtieth day of June, two thousand six.
(b) All decisions by the appropriate governing board, the
commission or its agents at state institutions of higher education
concerning reductions in work force of full-time classified
personnel, whether by temporary furlough or permanent termination,
shall be made in accordance with this section. For layoffs by
classification for reason of lack of funds or work, or abolition of
position or material changes in duties or organization and for
recall of employees laid off, consideration shall be given to an
employee's seniority as measured by permanent employment in the
service of the state system of higher education. In the event that
the institution wishes to lay off a more senior employee, the
institution shall demonstrate that the senior employee cannot
perform any other job duties held by less senior employees of that institution in the same job class or any other equivalent or lower
job class for which the senior employee is qualified: Provided,
That if an employee refuses to accept a position in a lower job
class, the employee shall retain all rights of recall provided in
this section. If two or more employees accumulate identical
seniority, the priority shall be determined by a random selection
system established by the employees and approved by the
institution.
(c) Any employee laid off during a furlough or reduction in
work force shall be placed upon a preferred recall list and shall
be recalled to employment by the institution on the basis of
seniority. An employee's listing with an institution shall remain
active for a period of one calendar year from the date of
termination or furlough or from the date of the most recent
renewal. If an employee fails to renew the listing with the
institution, the employee's name may be removed from the list. An
employee placed upon the preferred list shall be recalled to any
position opening by the institution within the classifications in
which the employee had previously been employed or to any lateral
position for which the employee is qualified. An employee on the
preferred recall list shall not forfeit the right to recall by the
institution if compelling reasons require the employee to refuse an
offer of reemployment by the institution.
The institution shall notify all employees maintaining active
listings on the preferred recall list of all position openings that
from time to time exist. The notice shall be sent by certified
mail to the last known address of the employee. It is the duty of
each employee listed to notify the institution of any change in
address and to timely renew the listing with the institution. No
position openings shall be filled by the institution, whether
temporary or permanent, until all employees on the preferred recall
list have been properly notified of existing vacancies and have
been given an opportunity to accept reemployment.
(d) A nonexempt classified employee, including a nonexempt
employee who has not accumulated a minimum total of one thousand
forty hours during the calendar year or whose contract does not
extend over at least nine months of a calendar year, who meets the
minimum qualifications for a nonexempt job opening at the
institution where the employee is currently employed, whether the
job is a lateral transfer or a promotion, and applies for the job
shall be transferred or promoted before a new person is hired
unless the institution decides to hire a better qualified external
candidate or the hiring is affected by mandates in affirmative
action plans or the requirements of Public Law 101-336, the
Americans With Disabilities Act. If more than one qualified,
nonexempt classified employee applies, and the institution has not decided to hire a better qualified external candidate, the
best-qualified nonexempt classified employee shall be awarded the
position. In instances where the classified employees are equally
qualified, the nonexempt classified employee with the greatest
amount of continuous seniority at that state institution of higher
education shall be awarded the position. A nonexempt classified
employee is one to whom the provisions of the federal Fair Labor
Standards Act, as amended, apply.
(e) The provisions of subsections (a) through (d) of this
section shall not apply to employees hired pursuant to a grant,
contract, or other external funding and such grant, contract, or
external funding has a finite term.
(e) (f) In addition to any other information required, any
application for personnel governed by the provisions of this
section shall include the applicant's social security number.
ARTICLE 9. CLASSIFIED EMPLOYEE SALARY SCHEDULE AND CLASSIFICATION
SYSTEM.
§18B-9-2. Definitions.
As used in this article:
(a) "Classified employee or employee" means any regular
full-time or regular part-time employee of a governing board, or
the commission, including all employees of the West Virginia
network for educational telecomputing who hold a position that is assigned a particular job title and pay grade in accordance with
the personnel classification system established by this article or
by the commission;
(b) "Nonclassified employee" means an individual who is
responsible for policy formation at the department or institutional
level, or reports directly to the president ; or is in a position
considered critical to the institution by the president pursuant to
policies adopted by the governing board Provided, That the
percentage of personnel placed in the category of "nonclassified"
at any given institution shall not exceed ten percent of the total
number of employees of that institution who are eligible for
membership in any state retirement system of the state of West
Virginia or other retirement plan authorized by the state:
Provided, however, That an additional ten percent of the total
number of employees of that institution as defined in this
subsection may be placed in the category of "nonclassified" if they
are in a position considered critical to the institution by the
president or is in a technology or technology related position as
designated by the president. Final approval of such placement
designation shall be with the appropriate governing board. All
employees of the commission, including those at the West Virginia
network for educational telecomputing, shall be "nonclassified."
"Nonclassified" employees serve at the will and pleasure of their employer.
(c) "Job description" means the specific listing of duties and
responsibilities as determined by the appropriate governing board
or the commission and associated with a particular job title;
(d) "Job title" means the name of the position or job as
defined by the appropriate governing board or the commission;
(e) "Merit increases and salary adjustments" means the amount
of additional salary increase allowed on a merit basis or to
rectify salary inequities or accommodate competitive market
conditions in accordance with rules established by the governing
boards or the commission;
(f) "Pay grade" means the number assigned by the commission to
a particular job title and refers to the vertical column heading of
the salary schedule established in section three of this article;
(g) "Personnel classification system" means the process of job
categorization adopted by the commission by which job title, job
description, pay grade and placement on the salary schedule are
determined;
(h) "Salary" means the amount of compensation paid through the
state treasury per annum to a classified employee;
(i) "Schedule" or "salary schedule" means the grid of annual
salary figures established in section three of this article; and
(j) "Years of experience" means the number of years a person has been an employee of the state of West Virginia and refers to
the horizontal column heading of the salary schedule established in
section three of this article. For the purpose of placement on the
salary schedule, employment for nine months or more equals one year
of experience, but no classified employee may accrue more than one
year of experience during any given fiscal year. Employment for
less than full time or less than nine months during any fiscal year
shall be prorated. In accordance with rules established by the
commission, a classified employee may be granted additional years
of experience not to exceed the actual number of years of prior,
relevant work or experience at accredited institutions of higher
education other than state institutions of higher education.
§18B-9-4. Establishment of personnel classification system;
assignment to classification and to salary schedule.
(a) The commission shall implement an equitable system of job
classifications, with the advice and assistance of staff councils
and other groups representing classified employees, each
classification to consist of related job titles and corresponding
job descriptions for each position within a classification,
together with the designation of an appropriate pay grade for each
job title, which system shall be the same for corresponding
positions of the commission and in institutions under all governing
boards. The equitable system of job classification and the rules establishing it which were in effect immediately prior to the
effective date of this section are hereby transferred to the
jurisdiction and authority of the commission and shall remain in
effect unless modified or rescinded by the commission.
(b) Any classified staff salary increases distributed within
state institutions of higher education on the first day of July,
two thousand one, shall be in accordance with the uniform employee
classification system and a salary policy adopted by the interim
governing board and approved by the commission. Any classified
salary increases distributed within a state institution of higher
education after the first day of July, two thousand one, shall be
in accordance with the uniform classification system and a uniform
and equitable salary policy adopted by each individual board of
governors. Each salary policy shall detail the salary goals of the
institution and the process whereby the institution will achieve or
progress toward achievement of placing each classified employee at
his or her minimum salary on the schedule established pursuant to
section three of this article.
(c) No classified employee defined as nonexempt from the wage
and hour provisions of the Fair Labor Standards Act of 1938, as
amended, may be paid an annual salary in excess of the salary
established by the salary schedule for his or her pay grade and
years of experience. Classified employees defined as exempt from the wage and hour provisions of the Fair Labor Standards Act of
1938, as amended, may receive a salary in excess of the salary
established by the salary schedule for his or her pay grade and
years of experience but only if all such exempt employees at the
institution are receiving at least the minimum salary for their pay
grade and years of experience as established for them by the salary
schedule: Provided, That no exempt classified employee may receive
a salary in excess of the highest salary provided for his or her
pay grade in the salary schedule.
(d) If the commission determines there are regional
differences in the state in the market value of certain
classifications of staff, the provisions of subsection (c) shall
not apply to those classified positions at institutions designated
by the commission.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-1b. Per credit hour tuition and fees pilot programs.
The policy commission may approve the request of up to three
governing boards to establish a pilot program which would allow
each governing board to establish a per credit hour charge for the
different classes or categories of students enrolling at the
institution, in lieu of certain other tuition and fees set out in
this article. The pilot programs shall become effective the fall semester of two thousand four and extend through the spring
semester of two thousand eight, unless terminated earlier by a
governing board. The governing board of each institution with a
pilot program shall report the progress of the program to the
policy commission each December which shall communicate those
reports annually to the legislative oversight commission on
education accountability. By the first day of January, two
thousand eight, the policy commission shall report to the
legislative oversight commission on education accountability on the
results of the pilot program and make recommendations as to whether
the pilot programs should be continued or extended to other
institutions.
ARTICLE 14. MISCELLANEOUS.
§18B-14-11. Health insurance coverage option
.
(a) Together, The higher education policy commission and the
public employees insurance governing boards agency shall submit to
the legislative oversight commission on education accountability by
the first day of December, two thousand three, draft legislation
regarding benefits offered by the agency.
(b) The draft legislation shall provide: (1) may provide
incentives for employees insured by the public employees insurance
agency to decline benefits from the agency. Incentives may
include:
(A) (1) Optional purchase of supplemental benefits;
(B) (2) Payment of a percentage of the savings realized by the
employer due to cancellation of insurance coverage for the
employee; and
(C) (3) Any other incentive determined appropriate by the
agency and commission or governing board;
(2) (b) A requirement that a public An employee of the
commission or a governing board may only decline benefits from the
agency only pursuant to an incentive offered under this section of
the code if that employee verifies that he or she has health
insurance coverage by an alternate provider (3) and there is a
procedure for verifying the alternate coverage required by
subdivision (2) of this subsection at least annually; and
(4) (c) A procedure whereby An employee who has declined
coverage pursuant to this section will may, at the employee's
choice, be reinstated automatically in the agency's program
immediately following loss of the alternate coverage.
(d) Any incentive plan adopted pursuant to this section of the
code must be approved by the policy commission and public employees
insurance agency.
(e) The public employees insurance agency shall monitor the
program to determine if any incentive plans have a negative impact
on the public employees insurance agency. If it is determined to have a negative impact the agency may make an additional charge to
the employer.
NOTE: The purpose of this bill is to grant greater
flexibility to state institutions of higher education in the areas
of management, finance, purchasing and personnel and create a
research challenge fund for research and development initiatives at
institutions of higher education.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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