ENROLLED
H. B. 4746
(By Delegates Michael, R. M. Thompson, H. White,
Hall, Campbell and Leach)
[Passed March 13, 2004; in effect ninety days from passage.]
AN ACT to amend and reenact §12-1-2, §12-1-7, §12-1-12 and §12-1-13
of the code of West Virginia, 1931, as amended; to amend and
reenact §12-2-1 of said code; to amend and reenact §12-3-1 and
§12-3-1a of said code; to amend and reenact §12-3A-3, §12-3A-4
and §12-3A-6 of said code; to amend and reenact §12-5-1 and
§12-5-5 of said code; and to amend and reenact §18-30-4 of
said code, all relating generally to the state treasurer's
office; designating financial institutions as depositories for
state funds; adding state and federal savings and loan
associations as candidates for depository banks; exceptions;
defining spending unit for the purposes of chapter twelve of
the code; allowing only the treasurer to enter into contracts
for banking goods and services; exceptions; requiring
financial institutions outside the state with state funds to
meet the same collateral requirements for other depositories;
clarifying that the treasurer may pay for banking goods and
services by maintaining a compensating balance in an account other than only accounts that do not earn interest; adding
electronic funds transfers to the methods the state uses to
receive moneys; amending procedures for stale dated checks and
requiring the treasurer to search for the payee; requiring
spending units which have payments in which the checks have
become stale to inform the treasurer's office when the stale
dated checks contain federal funds, the amount of the federal
funds and which account should receive the funds; specifying
legal effect of documents and electronic signatures; adding
the treasurer as additional administrator of the West Virginia
check card; allowing the state treasurer to authorize spending
units to assess and collect fees for electronic commerce
receipts; requiring the state treasurer to issue legislative
rules to authorize spending units to assess and collect fees
for electronic commerce receipts; adding cash to the
definition of securities; creating fund in treasury to allow
for the deposit of cash into safekeeping and allowing the
treasurer to invest the money and to prescribe forms and
procedures for processing the moneys; changing the
qualifications for certain members of the West Virginia
college prepaid tuition and savings program and changing the
appointment process of two members of the West Virginia
college prepaid tuition and savings program.
Be it enacted by the Legislature of West Virginia:
That §12-1-2, §12-1-7, §12-1-12 and §12-1-13 of the code of
West Virginia, 1931, as amended, be amended and reenacted; that §12-2-1 of said code be amended and reenacted; that §12-3-1 and
§12-3-1a of said code be amended and reenacted; that §12-3A-3,
§12-3A-4 and §12-3A-6 of said code be amended and reenacted; that
§12-5-1 and §12-5-5 of said code be amended and reenacted; and that
§18-30-4 of said code be amended and reenacted, all to read as
follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1. STATE DEPOSITORIES.
§12-1-2. Depositories for demand deposits; categories of demand
deposits; competitive bidding for disbursement
accounts; maintenance of deposits by state treasurer;
definition of spending unit.
The state treasurer shall designate the state and national
banks and the state and federal savings and loan associations in
this state meeting the requirements of this chapter as depositories
for all state funds placed in demand deposits.
Demand deposit accounts shall consist of receipt and
disbursement accounts. Receipt accounts are 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 are 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 are accounts established by the West
Virginia investment management board or the state treasurer for the
buying and selling of securities for investment purposes.
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. If none of the eligible banks in this state are able to
provide the needed services, then the treasurer may include
eligible banks outside this state in the competitive bidding
process. The treasurer shall promulgate rules 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 the
treasurer 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, in short
term investments not to exceed five days, or in disbursement
accounts with financial institutions 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. Only banks and state and federal
savings and loan associations designated by the treasurer as
depositories may accept deposits of state funds. Boards,
commissions and spending units with authority pursuant to this code
to deposit moneys in a financial institution without approval of
the state treasurer shall retain that authority and are not
required to have the treasurer designate a financial institution as
a depository:
Provided, That boards, commissions and spending
units with moneys deposited in financial institutions not approved
for that purpose by the state treasurer shall submit a report on
those moneys annually to the legislative auditor. The provisions
of this section shall not apply to the proceeds from the sale of
general obligation bonds or bonds issued by the school building
authority, the parkways, economic development and tourism
authority, the housing development fund, the economic development
authority, the infrastructure and jobs development council, the
water development authority or the hospital finance authority.
As used in this chapter, "spending unit" means a department,
agency, board, commission or institution of state government for
which an appropriation is requested, or to which an appropriation
is made by the Legislature.
§12-1-7. Rules; banking contracts and agreements; depositors;
agreements.
In addition to rules specially authorized in this article, the
West Virginia investment management board and the state treasurer
are generally authorized to promulgate any rules necessary to
protect the interests of the state, its depositories and taxpayers.
All rules promulgated are 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,
the investment management board or the state treasurer pursuant to
this article shall remain in effect until amended, superseded or
rescinded.
Only the treasurer may enter into contracts or agreements with
financial institutions for banking goods or services required by
spending units. Boards, commissions and spending units with
authority pursuant to this code to enter into contracts or
agreements with financial institution for banking goods and
services without approval of the state treasurer shall retain that
authority and are not required to have the treasurer designate a
financial institution as a depository. The provisions of this
section shall not apply to trust and investment accounts and
activities for general obligation bonds or bonds issued by the school building authority, the parkways, economic development and
tourism authority, the housing development fund, the economic
development authority, the infrastructure and jobs development
council, the water development authority or the hospital finance
authority. A state spending unit requiring banking goods or
services shall submit a request for the goods or services to the
treasurer. If the treasurer enters into a contract or agreement
for the required goods or services, spending units using the
contract or agreement shall pay either the vendor or the treasurer
for the goods or services used.
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 are promoted thereby, and
upon condition that no right of the state to preferred payment is
waived.
§12-1-12. Investing funds in treasury; 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 excess for
the benefit of the general revenue fund:
Provided, That the state
treasurer, after reviewing the cash flow needs of the state, may withhold and invest amounts not to exceed one hundred twenty-five
million dollars of the operating funds needed to meet current
operational purposes. Investments made by the state treasurer
under this section shall be made in short term investments not to
exceed five days. Operating funds means the consolidated fund
established in section eight, article six of this chapter,
including all cash and investments of the fund.
Spending units with authority to retain interest or earnings
on a fund or account may submit requests to the treasurer to
transfer moneys to a specific investment pool of the investment
management board and retain any interest or earnings on the money
invested. The general revenue fund shall receive all interest or
other earnings on money invested that are not designated for a
specific fund or account.
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 depositories
outside the state have qualified by giving the bond prescribed in
section four of this article, the state treasurer shall deposit
funds in the same manner as funds are deposited in depositories
within the state under this article.
The state treasurer may transfer funds to financial
institutions outside the state to meet obligations to paying agents outside the state if the financial institution meets the same
collateral 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 goods and services ancillary thereto, by either a compensating
balance in an account maintained at the financial institution
providing the services or with a state warrant as described in
section one, article three 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 known as the banking services account to pay for all
banking services and goods and services ancillary to the banking
services provided to the state, for the investigation and pursuit
of the prior investment loss claims, and for amortization of the balance in the investment imbalance fund.
ARTICLE 2. PAYMENT AND DEPOSIT OF TAXES AND OTHER AMOUNTS DUE THE
STATE OR ANY POLITICAL SUBDIVISION.
§12-2-1. How and to whom taxes and other amounts due the state or
any political subdivision, official, department,
board, commission or other collecting agency thereof
may be paid.
All persons, firms and corporations shall promptly pay all
taxes and other amounts due from them to the state, or to any
political subdivision, official, department, board, commission or
other collecting agency thereof authorized by law to collect the
taxes and other amounts due by any authorized commercially
acceptable means, in money, United States currency or by check,
bank draft, certified check, cashier's check, post office money
order, express money order or electronic funds transfer payable and
delivered to the official, department, board, commission or
collecting agency thereof authorized by law to collect the taxes
and other amounts due and having the account upon which the taxes
or amounts due are chargeable against the payer of the taxes or
amounts due. The duly elected or appointed officers of the state
and of its political subdivisions, departments, boards, commissions
and collecting agencies having the account on which the taxes or
other amounts due are chargeable against the payer of the taxes or
other amounts due and authorized by law to collect the taxes or
other amounts due, and their respective agents, deputies, assistants and employees shall in no case be the agent of the payer
in and about the collection of the taxes or other amounts, but
shall at all times and under all circumstances be the agent of the
state, its political subdivision, official, department, board,
commission or collecting agency having the account on which the
taxes or amounts are chargeable against the payer of the taxes or
other amounts due and authorized by law to collect the same.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS.
§12-3-1. Manner of payment from treasury; form of checks.
(a) 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 policies of the state treasurer and 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.
(b) If a check is not presented for payment within six months
after it is drawn, it is the duty of the treasurer to credit it to
the depository on which it was drawn, to credit the "Treasurer's
Stale Check Fund," which is hereby created in the state treasury,
and immediately notify the auditor to make corresponding entries on
the auditor's books. If the state treasurer determines any funds
deposited in the stale check account are federal funds, the state
treasurer shall notify the spending unit authorizing the payment.
Within six months following issuance of the notice, the spending
unit shall inform the state treasurer of the amount of federal
funds included in the check, the account from which the federal
funds were disbursed, and the current fiscal year account to which
the federal funds are to be transferred. After receiving the
information, the state treasurer shall transfer the amount of
federal funds specified as a reimbursement to the current fiscal
year account specified to receive federal funds by the spending
unit. For a period of up to six months, the state treasurer shall
endeavor to pay the money in the stale check account to the payee.
The treasurer shall credit the money that has been in the stale
check account for six months, or for a shorter period as determined
by the treasurer, to the unclaimed property fund pursuant to the
provisions of article eight, chapter thirty-six of this code, and shall immediately notify the auditor to make corresponding entries
on the auditor's books.
(c) 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."
(d) Any information or records maintained by the treasurer
concerning any check not presented for payment within six months of
the date of issuance is confidential and exempt from disclosure
under the provisions of article one, chapter twenty-nine-b of this
code, and is disclosable only to the state spending unit
authorizing the check, or to the payee, his or her personal
representative, next of kin or attorney-at-law.
(e) 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 authorization of
the method of payment. The auditor shall prescribe the form of the
authorization. If the authorization is in written form, it shall
be sent to the auditor for review and approval and then forwarded
in electronic form to the treasurer. If the authorization is in
electronic form, it shall be sent to both the auditor and the
treasurer. The auditor must review and approve the authorization.
This section may not be construed to require the auditor to utilize
the method of payment authorized by this section. An authorization
furnished pursuant to this section may be revoked by written notice
furnished to the auditor and then forwarded by the auditor in
electronic form to the treasurer or by electronic notice furnished
to both the auditor and the treasurer. Upon execution of the
authorization and its receipt by the office of the auditor, the
warrant shall be created in the manner specified on the
authorization and forwarded to the treasurer for further
disposition to the designated bank or other financial institution
specified on the electronic warrant:
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.
ARTICLE 3A. FINANCIAL ELECTRONIC COMMERCE.
§12-3A-3. Financial electronic commerce.
The state auditor and the state treasurer shall implement
electronic commerce capabilities for each of their offices to
facilitate the performance of their duties under this code. The
state treasurer shall competitively bid the selection of vendors
needed to provide the necessary banking, investment and related
goods and services, and the provisions of article one-b, chapter
five, and articles three and seven, chapter five-a of this code
shall not apply, unless requested by the state auditor or state
treasurer.
A record, an authentication, a document or a signature issued
or used by the auditor, the treasurer shall be considered an
original and may not be denied legal effect on the ground that it
is in electronic form.
The head of each spending unit is responsible for adopting and
implementing security procedures to ensure adequate integrity,
security, confidentiality, and auditability of the business
transactions of his or her spending unit when utilizing electronic
commerce.
§12-3A-4. Payment by the West Virginia check card.
The state auditor and the state treasurer may establish a
state debit card known as the "West Virginia Check Card" for
recipients of employee payroll or of retirement, benefits or
entitlement programs who are considered unbanked and who do not possess a federally insured depository institution account. The
state auditor and the state treasurer shall use every reasonable
effort to make a federally insured depository account available to
a recipient, and to encourage all recipients to obtain a federally
insured depository account. Prior to issuing the West Virginia
check card, the state auditor and the state treasurer shall first
make a determination that a recipient has shown good cause that an
alternative method to direct deposit is necessary. The state
auditor and the state treasurer shall jointly issue a request for
proposals in accordance with section three of this article to aid
in the administration of the program and in the establishment of
state owned bank accounts and accommodate accessible locations for
use of the West Virginia check card. In carrying out the purposes
of this article, the state auditor and state treasurer shall not
compete with banks or other federally insured financial
institutions, or for profit.
§12-3A-6. Receipting of electronic commerce purchases.
(a) The state treasurer may establish a system for acceptance
of credit card and other payment methods for electronic commerce
purchases from spending units. Notwithstanding any other provision
of this code to the contrary, each spending unit utilizing WEB
commerce, electronic commerce or other method that offers products
or services for sale shall utilize the state treasurer's system for
acceptance of payments.
(b) To facilitate electronic commerce, the state treasurer may
charge a spending unit for the banking and other expenses incurred by the treasurer on behalf of the spending unit and for any work
performed, including, without limitation, assisting in the
development of a website and utilization of the treasurer's payment
gateway. A special revenue account, entitled the "Treasurer's
Financial Electronic Commerce Fund," is created in the state
treasury to receive the amounts charged by the treasurer. The
treasurer may expend the funds received in the Treasurer's
Financial Electronic Commerce Fund only for the purposes of this
article and for other purposes as determined by the Legislature.
(c) The state treasurer may authorize a spending unit to
assess and collect a fee to recover or pay the cost of accepting
bank, charge, check, credit or debit cards from amounts collected.
The state treasurer shall propose legislative rules for
promulgation in accordance with the provisions of article three of
chapter twenty-nine-a of this code to establish the criteria and
procedures involved in granting the authorization and may
promulgate emergency rules in accordance with the provisions of
article three of chapter twenty-nine-a of the code to implement the
provisions of this section prior to authorization of the
legislative rules.
ARTICLE 5. PUBLIC SECURITIES.
§12-5-1. Securities defined.
The term "securities" when used in this article shall include
all bonds, securities, debentures, notes or other evidences of
indebtedness, and for purposes of this chapter all cash received by
any state spending unit intended to serve as security for a legal obligation, whether pursuant to court order or otherwise.
§12-5-5. Protection and handling of securities.
(a) The noncash 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.
(b) The "Treasurer's Safekeeping Fund" is established in the
state treasury. The treasurer shall deposit moneys received
pursuant to this article in the Treasurer's Safekeeping Fund. The
treasurer is authorized to invest the money in accordance with this
code and the restrictions placed on the money, with earnings
accruing to the moneys in the fund. The treasurer shall prescribe
the forms and procedures for processing the moneys.
CHAPTER 18. EDUCATION.
ARTICLE 30. WEST VIRGINIA COLLEGE PREPAID TUITION AND SAVINGS
PROGRAM ACT.
§18-30-4. Creation of program; board; members; terms;
compensation; proceedings generally.
(a) The West Virginia college prepaid tuition and savings
program is continued. The program consists of a prepaid tuition
plan and a savings plan.
(b) The board of the college prepaid tuition and savings
program is continued and all powers, rights and responsibilities of
the board of trustees of the prepaid tuition trust fund are vested
in the board of the college prepaid tuition and savings program.
(c) The board consists of nine members and includes the
following:
(1) The secretary of education and the arts, or his or her
designee;
(2) The state treasurer, or his or her designee;
(3) Two representatives of the higher education policy
commission, who may or may not be members of the higher education
policy commission, appointed by the commission who serve as voting
members of the board, one of whom shall represent the interests of
the universities of West Virginia and the state colleges and one of
whom shall represent the interests of community and technical
colleges of West Virginia;
(4) Five other members, appointed by the governor, with
knowledge, skill and experience in an academic, business or
financial field, to be appointed as follows:
(A) Two private citizens not employed by, or an officer of,
the state or any political subdivision of the state;
(B)One member representing the interests of private
institutions of higher education located in this state appointed from one or more nominees of the West Virginia association of
private colleges; and
(C) Two members representing the public.
(d) The public members and the member representing the
interests of private institutions of higher education are appointed
by the governor with the advice and consent of the Senate.
(e) Only state residents are eligible for appointment to the
board.
(f) Members appointed by the governor serve a term of five
years and are eligible for reappointment at the expiration of their
terms. In the event of a vacancy among appointed members, the
governor shall appoint a person representing the same interests to
fill the unexpired term.
(g) Members of the board serve until the later of the
expiration of the term for which the member was appointed or the
appointment of a successor. Members of the board serve without
compensation. The treasurer may pay all expenses, including travel
expenses, actually incurred by board members in the conduct of
their official duties. Expense payments are made from the college
prepaid tuition and savings program administrative account, and are
made at the same rate paid to state employees.
(h) The treasurer may provide support staff and office space
for the board.
(i) The treasurer is the chairman and presiding officer of the
board, and may appoint the employees the board considers advisable
or necessary. A majority of the members of the board constitute a quorum for the transaction of the business of the board.