Senate Bill No. 46
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
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[Introduced January 18, 1995; referred to the Committee
Education; and then to the Committee on the Judiciary.]
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A BILL to amend and reenact sections two, three and six, article
twenty-six, chapter five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend
article five-a, chapter eighteen of said code by adding
thereto two new sections, designated sections seven and
eight; to amend and reenact sections one and one-a, article
five, chapter eighteen-a of said code; and to amend and
reenact section eleven-a, article seven, chapter sixty-one
of said code, all relating to adding responsibilities to the
governor's cabinet on children and families with respect to
developing a model productive and safe school plan and
assisting local councils on productive and safe schools in the development of school safety plans; relating to the
development of productive and safe school plans by councils
on productive and safe schools; relating to the assessment
of promotion costs against the children's fund; relating to
the authority of teachers to suspend pupils from school;
relating to the authority of principals and county
superintendents to suspend or expel pupils; and relating to
the prohibition on possession of deadly weapons on or near
school premises and the penalties and punishment for
violation of the prohibition.
Be it enacted by the Legislature of West Virginia:
That sections two, three and six, article twenty-six,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that article five-a, chapter eighteen of said code be amended by
adding thereto two new sections, designated sections seven and
eight; that sections one and one-a, article five, chapter
eighteen-a of said code be amended and reenacted; and that
section eleven-a, article seven, chapter sixty-one of said code
be amended and reenacted, all to read as follows:
CHAPTER 5. OFFICERS, BOARDS AND COMMISSIONS.
ARTICLE 26. GOVERNOR'S CABINET ON CHILDREN AND FAMILIES.
§5-26-2. Cabinet established.
There is hereby created the governor's cabinet on children
and families, hereinafter referred to as the "cabinet." In
addition to such other administrative heads of government as the
governor may appoint to the cabinet, the cabinet shall include
the secretary of health and human resources; the secretary of
commerce, labor and environmental resources or a designee; the
secretary of administration or a designee; the state
superintendent of schools; and the attorney general; one member
of the Senate, to be appointed by the governor, and one member of
the House of Delegates, to be appointed by the governor, both of
whom shall serve in an advisory capacity only.
The secretary of the department of military affairs and
public safety, or a designee, and a representative of the
judicial branch of state government, to be appointed by the chief
justice of the supreme court of appeals, shall serve in an
advisory capacity to the cabinet for the sole and limited purpose
of assisting the cabinet with respect to the fulfillment of the
cabinet's duties and responsibilities set forth in the provisions
of subsections (15) and (16), section three of this article.
The cabinet shall be chaired by the governor and shall
convene at least monthly during the first year and thereafter
shall meet at least quarterly. The cabinet shall establish
bylaws which govern its decision making.
§5-26-3. Duties and responsibilities of cabinet generally.
In addition to all other duties and responsibilities
assigned to the cabinet in this article and elsewhere by law, the
cabinet shall have the power and the duty to:
(1) Analyze ways to best utilize the information and
evaluations obtained through previously existing or ongoing
programs for children and families such as "Home-Oriented
Preschool Education" (HOPE), which focuses on televised
educational outreach to rural children; "Parent and Child
Education" (PACE), which focuses on literacy; and "Parents as
Teachers" (PAT), which focuses on parents working with the
children and determine ways to implement or incorporate aspects
of the programs that would be of benefit to families and children
in this state;
(2) Designate an individual who shall monitor and report on
head-start, early intervention and other preschool programs
throughout the state;
(3) Provide for the holistic coordination of programs and
services for
all children and families in such areas as housing;
health promotion and disease prevention; education,
transportation, reading and literacy; food and nutrition; other
necessities such as clothing and utilities; job training and
employment; child care; child protection;
early intervention and
crisis intervention; assessment and diagnosis; home-based family
development, preservation and reunification; financial planning;
mental health and counseling; substance abuse prevention
counseling and treatment; in order to increase the available drug
and alcohol counseling, education and addiction awareness
training; pregnancy prevention for adolescents with the goal
being to reduce the number of adolescent pregnancies by fifty
percent by the year 2000; information, referral and placement and
any other such services;
(4) Promote the delivery of early prenatal care services for
all pregnant women through local health care providers;
(5) Assure the development of parenting education services
and outreach efforts, child developmental stages, including the utilization of media and supportive activities for children and
care givers with a focus on children three to five years old
living in rural areas;
(6) Provide for the coordination of programs and services
for comprehensive developmental screening and well-baby visits
for all preschool children and parental involvement in all areas
of a child's education and development;
(7) Identify facilities and properties throughout the state
that may be required or available for the effective and efficient
provision of programs and services to children and families, with
an emphasis on utilizing available state facilities, including
public school facilities
and facilities within the state system
of higher education;
(8) Prepare a proposed budget for the operation of the
cabinet to be recommended to the governor for inclusion in the
executive budget to be submitted to the Legislature;
(9) Create an independent case management system for all
children in the custody of the state, for families requiring
services from multiple agencies, and for any other category of children or families as the cabinet may deem appropriate;
(10) Develop coordinated information systems and examples of
forms, including eligibility forms, for use at the local,
regional and state levels designed: (i) To provide people with
complete, easy-to-read information on programs and services
available to children and families; and (ii) to provide service
providers with sufficient information while minimizing the amount
of paperwork required of people seeking services or for program
participation;
(11) Promote the work of the governor's cabinet on children
and families in order to engender strong support from the
community, the Legislature, and business leaders;
(12) Provide public information on services and programs
available to children and families which shall include a staffed,
statewide toll-free phone number whereby children and families
can receive information on available services and programs and
which may include television programs, public service
announcements, and any other effective means of providing
information on, communicating or promoting any service or program;
(13) Address specifically the provision of programs and
services to children and families living in the rural areas of
the state;
and
(14) Report annually to the Legislature and to such other
units as the cabinet may deem appropriate on issues relating to
children and families;
(15) Develop a model productive and safe school plan to
which the local councils on productive and safe schools
established pursuant to the provisions of section seven, article
five-a, chapter eighteen of this code may refer in the respective
council's development of a productive and safe school plan as
required by the provisions of section eight, article five-a,
chapter eighteen of this code; and
(16) Provide such other assistance and information to the
local councils on productive and safe schools established
pursuant to the provisions of section seven, article five-a,
chapter eighteen of this code as the respective council may
reasonably request in the development of a school safety plan as set forth in the provisions of section three-a, article five-a,
chapter eighteen of this code and as the cabinet may
realistically accommodate.
§5-26-6. Children's fund created; purpose.
(a) The cabinet shall establish a children's fund for the
sole purpose of awarding grants, loans and loan guaranties for
child abuse and neglect prevention activities:
Provided, That
the reasonable costs of promoting or soliciting contributions to
the children's fund and thereby furthering the prevention of
child abuse and neglect in this state is an allowable charge
against, and may be satisfied from, the amount credited to the
children's fund pursuant to this or any other applicable
provision of this code. Gifts, bequests or donations for this
purpose, in addition to appropriations to the fund, shall be
deposited in the state treasury in a special revenue account that
is independent from any executive or other department of
government, other than the office of the governor. Any moneys
deposited in the children's trust fund created pursuant to
article six-c, chapter forty-nine of this code on the effective date of this section, and any interest accruing to such fund,
shall be deposited in the children's fund created pursuant to
this section, and the children's trust fund shall thereafter be
discontinued.
(b) Each state taxpayer may voluntarily contribute a portion
of the taxpayer's state income tax refund to the children's fund
by so designating the contribution on the state personal income
tax return form. The cabinet shall approve the wording of the
designation on the income tax return form, which designation
shall appear on tax forms as of the first day of January, one
thousand nine hundred ninety-one. The tax commissioner shall
determine by the first day of July of each year the total amount
designated pursuant to this subsection and shall report that
amount to the state treasurer, who shall credit that amount to
the children's fund.
(c) All interest accruing from investment of moneys in the
children's fund shall be credited to the fund, and the
legislative auditor shall conduct an annual audit of the fund.
(d) Grants, loans and loan guaranties may be awarded from the children's fund by the cabinet for child abuse and neglect
prevention activities.
CHAPTER 18. EDUCATION.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-7. Council on productive and safe schools.
(a) A council on productive and safe schools shall be
established at every school and shall be comprised of the
following members:
(1) The principal, who shall serve as an ex officio member
of the council and who shall be entitled to vote;
(2) In addition to the principal, six representatives of the
local school improvement council established pursuant to the
provisions of this article to be appointed by the principal,
except that such appointments will be made to select at least one
parent representative and one at-large representative from the
local school improvement council;
(3) A representative of the department of health and human
resources created pursuant to the provisions of section two,
article one, chapter five-f of this code to be appointed in a
manner determined by the secretary of the department;
(4) A representative of the law enforcement agencies
situated in the community in which the school is situated who
shall be appointed by the principal;
(5) A representative of the county board of education for
the county in which the school is situated who shall be appointed
by the president of the county board; and
(6) A representative of the judicial branch who has
responsibility for the prosecution of, the adjudication of or the
disposition of juvenile proceedings in the community in which the
school is situated to be appointed by the principal.
(b) The principal of each school shall arrange for the
appointment of the council upon the effective date of this
section and shall call an organizational meeting of the council
as soon as practicable after the effective date of this section.
The council shall meet as necessary to fulfill the
responsibilities of the council set forth in section eight of
this article. The council shall elect from its membership a
chair and two members of the council to assist the chair in
establishing the agendas for meetings of the council. The chair shall serve for a term of one year and no person may serve as
chair for more than two consecutive terms. If the chair's
position becomes vacant for any reason, the principal shall serve
as the chair until the expiration of the term.
(c) The chair of the council shall be responsible for
providing reasonable notice of the meetings of the council and
shall be obligated to call a meeting as necessary to fulfill the
responsibilities of the council set forth in section eight of
this article or at the request of four members of the council or
at the request of the principal.
(d) As set forth in the provisions of section two, article
twenty-six, chapter five of this code, the council shall receive
such assistance and information from the governor's cabinet on
children and families as is reasonably requested by the council
and as may be reasonably accommodated by the cabinet.
§18-5A-8. Productive and safe school plans.
(a) Each council on productive and safe schools established
pursuant to the provisions of this article shall adopt by the
first day of September, one thousand nine hundred ninety-five, a productive and safe school plan:
(1) Setting forth a student discipline policy for the school
in which the council is established: (A) That fosters and
maintains a classroom environment that is safe, orderly and free
from unnecessary disruption; (B) that empowers teachers to
effectively discipline, including the ability to suspend, any
student who disrupts normal classroom activities, who is
disrespectful to a teacher, who willfully disobeys a teacher, who
willfully violates school rules or policies, or who generally
interferes with an orderly educational process; and (C) that
sufficiently empowers the principal and the superintendent of the
county in which the school is situated to immediately suspend and
effectively discipline a student who threatens to cause or causes
a bodily injury to a school employee, who uses foul or profane
language, who engages in immoral or vicious conduct injurious to
the student or other students or school employees, who possesses
or uses tobacco or alcoholic beverages or possesses, unlawfully,
a controlled substance governed by the Uniform Controlled
Substance Act in or near school buildings or other premises or on school buses, who habitually disrupts the school, who habitually
violates school rules or policies, who intentionally defaces or
damages any part of the school buildings or premises or school
buses,or who is found to be in possession of any firearm or other
deadly weapon;
(2) Establishing an effective communication and coordination
between the school and local emergency services agencies;
(3) Setting forth an operations policy for the school
facilities or grounds that ensures adequate security for the
students, staff and property of the school;
(4) Incorporating and implementing in the school the
responsible students program devised by the state board of
education, except that such program may be modified to meet the
particular needs and circumstances of the school;
(5) Incorporating and implementing in the school the peer
conflict resolution program or programs for students devised by
the state board of education, except that such program or
programs may be modified to meet the particular needs and
circumstances of the school;
(6) Recommending training for the staff of the school in
areas affecting the safety of the school's students, staff and
property and directing the submission of the recommendations to
the county staff development councils established in accordance
with sections eight and nine, article three, chapter eighteen-A
of this code; and
(7) Devising a plan for the development, maintenance and
operation of an alternative school program or homebound
instruction program, in coordination with other school districts
or with the regional educational service agencies or the state
board of education: (A) For compulsory-school-age children who
have been suspended or expelled from the school; (B) for
compulsory-school-age children who have a documented need for
such a program due to disciplinary problems; and (C) for
compulsory-school-age children who would be referred to such a
program by the juvenile courts.
(b) Each council on productive and safe schools shall
periodically review the productive and safe school plan adopted
for the school in which the council is established and make such modifications to the plan that are deemed to be necessary.
(c) Productive and safe school plans that are developed in
accordance with the provisions of this section shall be filed
with the superintendent of the county in which the school is
situated and the county superintendent shall provide such
assistance and information in the development and the
implementation of the plan as the council on productive and safe
schools may reasonably request and the county superintendent may
realistically accommodate.
(d) Productive and safe school plans that are developed in
accordance with the provisions of this section shall be filed
with the county board of education for the county in which the
school is situated and the council on productive and safe schools
shall duly consider any recommendations of the board regarding
the productive and safe school plan and the county board of
education shall provide such assistance and information to the
council on safe and productive schools as may be reasonably
requested and as may be realistically accommodated.
(e) Productive and safe school plans that are developed in accordance with the provisions of this section shall be delivered
to the parent or parents, custodian or other legal guardian of
the students who are attending the school and the parent or
parents, custodian or other legal guardian are obligated to
return an acknowledgment that the plan has been received and
reviewed.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1. Authority of teachers and other school personnel;
exclusion
of pupils having infectious diseases; suspension or
expulsion of disorderly pupils; corporal punishment
abolished.
(a) The teacher shall stand in the place of the parent or
guardian in exercising authority over the school, and shall have
control of all pupils enrolled in the school from the time they
reach the school until they have returned to their respective
homes, except that where transportation of pupils is provided,
the driver in charge of the school bus or other mode of
transportation shall exercise such authority and control over the
children while they are in transit to and from the school.
(b) Subject to the rules of the state board of education,
the teacher shall exclude from the school any pupil or pupils
known to have or suspected of having any infectious disease, or
any pupil or pupils who have been exposed to such disease, and
shall immediately notify the proper health officer, or medical
inspector, of such exclusion. Any pupil so excluded shall not be
readmitted to the school until such pupil has complied with all
the requirements of the rules governing such cases, or has
presented a certificate of health signed by the medical inspector
or other proper health officer.
(c) The teacher shall have authority to
suspend discipline
any pupil
who is guilty of disorderly, refractory, indecent or
immoral conduct
and the district board of education may expel or
exclude any such pupil if, on investigation, the conduct of such
pupil is found to be detrimental to the progress and the general
conduct of the school or who in any manner interferes with an
orderly educational process and the teacher shall discipline the
student in accordance with the provisions of the productive and
safe school plan for the school that is adopted pursuant to the provisions of section eight, article five-a, chapter eighteen of
this code.
(d) Corporal punishment of any pupil by a school employee is
prohibited.
The West Virginia board of education and county boards of
education shall adopt policies consistent with the provisions
of this section encouraging the use of alternatives to corporal
punishment, providing for the training of school personnel in
alternatives to corporal punishment and for the involvement of
parents and guardians in the maintenance of school discipline.
(e) For the purpose of this section: (1) "Pupil" shall
include any child, youth or adult who is enrolled in any
instructional program or activity conducted under board
authorization and within the facilities of or in connection with
any program under public school direction:
Provided, That in the
case of adults the pupil-teacher relationship shall terminate
when the pupil leaves the school or other place of instruction or
activity; (2) "teacher" shall mean all professional educators as
defined in section one, article one of this chapter and shall include the driver of a school bus or other mode of
transportation.
(f) Teachers shall exercise such other authority and perform
such other duties as may be prescribed for them by law or by the
rules of the state board of education not inconsistent with the
provisions of this chapter and chapter eighteen of this code.
§18A-5-1a. Assaults by pupils upon teachers or other school
personnel; temporary suspension, hearing;
procedure, notice and formal hearing; extended
suspension; expulsion; exception.
(a)
Any pupil who threatens to cause, attempts to cause, or
causes a bodily injury to a school employee may be suspended or
expelled from school in accordance with the provisions of this
section. A school principal may suspend a pupil from, or a
school principal and the superintendent of schools for the county
in which the school is situated may expel a pupil from, the
school or transportation to the school on any school bus if the
pupil, in the determination of the principal or in the
determination of the principal and county superintendent, has
violated the provisions of section fifteen, article two, chapter sixty-one of this code or has violated the provisions of section
eleven-a, article seven, chapter sixty-one of this code or has
engaged in immoral or vicious conduct that is potentially
injurious to the pupil or other pupils or school employees or has
possessed or used tobacco or alcoholic beverages or unlawfully
possessed a controlled substance governed by the Uniform
Controlled Substance Act in, or within three hundred feet of, the
school's buildings, facilities or premises or on a school bus, or
has habitually disrupted the educational process within the
school or has habitually violated school rules or policies or has
intentionally defaced or damaged any part of the school's
buildings, facilities or property or school buses or has
committed any other serious offense. The procedure for
suspension of the pupil by the principal or the expulsion of the
pupil by the principal and the county superintendent shall be in
accordance with the provisions of the productive and safe school
plan for the school that is adopted pursuant to the provisions of
section eight, article five-a, chapter eighteen of this code.
The procedures established in the productive and safe school plan for the suspension or expulsion of a pupil pursuant to the
provisions of this subsection shall contain, at a minimum, the
procedural requirements and other provisions set forth in the
remaining subsections of this section.
(b)
The actions of any pupil which may be grounds for his
suspension or expulsion under the provisions of this section
shall be reported immediately to the principal of the school in
which such pupil is enrolled. If the principal determines that
the alleged actions of the pupil would be grounds for suspension,
he
or she shall conduct an informal hearing for the pupil
as soon
as practicable immediately after the alleged actions have
occurred. The hearing shall be held before the pupil is
suspended unless the principal believes that the continued
presence of the pupil in the school poses a continuing danger to
persons or property or an ongoing threat of disrupting the
academic process, in which case the pupil may be suspended
immediately and a hearing held as soon as practicable after the
suspension.
The pupil and his parent or parents or custodial guardian, as the case may be, shall be given written notice by certified
mail, return receipt requested, of this informal hearing, which
notice shall briefly state the grounds for suspension.
At the commencement of the informal hearing, the principal
shall inquire of the pupil as to whether he
or she admits or
denies the charges. If the pupil does not admit the charges, he
or she shall be given an explanation of the evidence possessed by
the principal and an opportunity to present his
or her version of
the occurrence. At the conclusion of the hearing or upon the
failure of the noticed persons to appear, the principal may
suspend the pupil for a maximum of ten school days, including the
time prior to such hearing, if any, for which the pupil has been
excluded from school. If the principal believes
or the
productive and safe school plan mandates that a longer suspension
or expulsion of the pupil is warranted in addition to a ten-day
suspension,
he the principal shall
so advise the parents and
pupil, if present, and recommend such action to the
superintendent of schools of the county in which the school where
the pupil is enrolled is located.
(c) Any suspension shall be reported by the principal the
same day it has been decided upon, in writing, to the county
superintendent of schools of the county in which the school where
the pupil is enrolled is located.
(d) (c) If the principal recommends and the superintendent
agrees that the suspension
of the pupil should be extended for
beyond ten school days or that the pupil should be expelled from
school
, the superintendent shall immediately notify the county
board of education of this recommendation. Upon receipt of such
recommendation, the county board of education shall cause a
written notice, which states the charges
and the recommended
disposition, to shall be served upon the pupil and his
or her
parent or parents or custodial guardian, as the case may be.
advising such persons that unless a timely request is made for
hearing, the recommended disposition shall become final Such
notice shall set forth a date and time
at which such that a
hearing
, if requested, shall be held, which date shall be within
the ten-day period of suspension imposed by the principal.
The
notice shall further advise the persons to be noticed thereby that a request for hearing will not be granted unless received by
the board more than twenty-four hours before the time proposed
for hearing in the notice.
Upon timely receipt of a hearing request, the board of
education The county superintendent or a designee shall hold the
scheduled hearing to determine if the pupil should be reinstated
or should have his
or her suspension extended or should be
expelled from school. At this hearing, the pupil may be
represented by counsel, may call his
or her own witnesses to
verify his
or her version of the incident and may confront and
cross-examine witnesses supporting the charge against him
or her.
The hearing shall be recorded by mechanical means. The hearing
may be postponed for good cause shown by the pupil but he
or she
shall remain under suspension until after the hearing.
The state
board of education may adopt other supplementary rules of
procedure to be followed in these hearings. At the conclusion of
the hearing
the county board of education the county
superintendent or his or her designee either shall order the
pupil reinstated immediately or at the end of his
or her initial suspension or shall suspend the pupil for a further designated
number of days or shall expel the pupil from the public schools
of such county.
for a period of time not to exceed one school
year
(d) Pupils may be suspended or expelled pursuant to the
provisions of this section for a period not to exceed one school
year, except that, if a pupil is determined to have violated the
provisions of section eleven-a, article seven, chapter sixty-one
of this code, the pupil shall be expelled by the county
superintendent for a period of not less than twelve consecutive
months: Provided, That the county superintendent may petition
the county board of education for the lessening of the mandatory
period of twelve consecutive months for the expulsion of the
pupil if the circumstances of the pupil's case demonstrably
warrants. The county board of education shall hold a public
hearing for the purpose of determining if the mandatory period
should be lessened and, if the county board of education lessens
the mandatory period of restriction, the county board of
education shall prepare a written statement setting forth the circumstances of the pupil's case which were demonstrated and
which warranted the lessening of the mandatory period of
expulsion and the statement shall be submitted to the principal,
the faculty senate, and the council on productive and safe
schools for the school from which the student was expelled.
(e) Notwithstanding the preceding provisions of this
section, if a pupil has prior to the actions complained of
being
been classified as or is eligible to be classified as an
exceptional child, other than gifted, under the provisions of
section one, article twenty, chapter eighteen of this code,
special consideration shall be given to such pupil as hereinafter
provided.
In any hearing held pursuant to this section, a pupil, his
parent or custodial guardian may show an explanation of the
actions complained of that such actions were the proximate result
of a condition which has qualified or would qualify the pupil for
a special educational program other than gifted. If the
principal or board finds that such actions were the proximate
result of such a condition, the pupil shall not be suspended or expelled pursuant to this section but the pupil shall be
forthwith referred to the appropriate personnel within the county
school system for development of an individual learning program:
Provided, That such pupil may be temporarily removed from school
according to procedures employed by the school system for special
education pupils if, in the opinion of the principal, such
removal is necessary for his or her own protection or the
protection of other pupils, teachers, school personnel or school
property during all or some part of the time required to prepare
such individual learning program.
An exceptional child may not be suspended or expelled for
conduct that is the proximate result of the child's disability:
Provided, That an exceptional child may be temporarily removed
from school for his or her own protection, or the protection of
school personnel. An exceptional child may not be temporarily
removed, suspended or expelled for a period of time in excess of
three consecutive school days or ten cumulative school days
during a school year, except that an exceptional child who has
committed a violation involving the possession of a firearm or other deadly weapon on or near the school premises may be placed
in an alternative educational setting by an individual placement
committee for a period of not more than forty-five days.
(f) In all hearings under this section, facts shall be found
by a preponderance of the evidence.
(g) For the purpose of this section, "school employee" means
a person employed by a county board of education whether employed
on a regular full-time basis, an hourly basis or otherwise if, at
the time of the commission of an act which would be grounds for
suspension or expulsion under this section, such person is
engaged in the performance of his duties or is commuting to or
from his place of employment. For the purposes of this section,
a "school employee" shall be deemed to include a student teacher.
(h) The remedies provided for in this section are
cumulative.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-11a. Possessing deadly weapons on or near premises of
educational facilities; reports by school
principals; suspension of driver's license; possessing deadly weapons on premises housing
courts of law and in offices of family law
masters.
(a) The Legislature hereby finds that the safety and welfare
of the citizens of this state are inextricably dependent upon
assurances of safety for children
in attending, and the persons
employed by, school schools in this state and for those persons
employed with the judicial department of this state. It is for
the purpose of providing such assurances of safety, therefore,
that
subsection subsections (b),
(g) and (h) of this section
is
are enacted as a reasonable regulation of the manner in which
citizens may exercise those rights accorded to them pursuant to
section twenty-two, article three of the Constitution of the
state of West Virginia.
(b) (1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon on any school bus as defined
in section one, article one, chapter seventeen-a of this code, or
in or on,
or within three hundred feet of, any public or private
primary or secondary education building, structure, facility or
grounds thereof, including any vocational education building, structure, facility or grounds thereof where secondary vocational
education programs are conducted.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official
capacity;
(B) A person specifically authorized by the board of
education of the county or principal of the school where the
property is located to conduct programs with valid educational
purposes; or
(C) A person who, as otherwise permitted by the provisions
of this article, possesses an unloaded firearm or deadly weapon
in a motor vehicle, or leaves an unloaded firearm or deadly
weapon in a locked motor vehicle,
that is not parked within three
hundred feet of any public or private primary or secondary
education building, structure, facility or grounds thereof,
including any vocational education building, structure, facility
or grounds thereof in or on which secondary vocational programs
are conducted.
(3) Any person violating this subsection shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars, or shall be confined in jail not
more than one year, or both.
(c) (1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon with the intent to commit a
crime on any school bus or in or on any public or private primary
or secondary education building, structure, facility or grounds
thereof, including any vocational education building, structure,
facility or grounds thereof where secondary vocational education
programs are conducted.
(2) Any person violating this subsection shall be guilty of
a felony, and, upon conviction thereof, shall be imprisoned in
the penitentiary of this state for a definite term of years of
not less than two years nor more than ten years, or fined not
more than five thousand dollars, or both.
(d) (c) It shall be the duty of the principal of each school
subject to the authority of the state board of education to
report any violation of
subsections subsection (b)
or (c) of this
section discovered by such principal to the state superintendent of schools within seventy-two hours after such violation occurs.
The state board of education shall keep and maintain such reports
and may prescribe rules establishing policy and procedures for
the making and delivery of the same as required by this
subsection. In addition, it shall be the duty of the principal
of each school subject to the authority of the state board of
education to report any violation of subsection (b)
or (c) of
this section discovered by such principal to the appropriate
local office of the division of public safety within seventy-two
hours after such violation occurs.
(e) (d) In addition to the methods of disposition provided
by article five, chapter forty-nine of this code, any court which
adjudicates a person who is fourteen years of age or older as
delinquent for a violation of subsection (b)
or (c) of this
section may, in its discretion, order the division of motor
vehicles to suspend any driver's license or instruction permit
issued to such person for such period of time as the court may
deem appropriate, such suspension, however, not to extend beyond
such person's nineteenth birthday; or, where such person has not been issued a driver's license or instruction permit by this
state, order the division of motor vehicles to deny such person's
application for the same for such period of time as the court may
deem appropriate, such denial, however, not to extend beyond such
person's nineteenth birthday. Any suspension ordered by the
court pursuant to this subsection shall be effective upon the
date of entry of such order. Where the court orders the
suspension of a driver's license or instruction permit pursuant
to this subsection, the court shall confiscate any driver's
license or instruction permit in the adjudicated person's
possession and forward the same to the division of motor
vehicles.
(f) (e) (1) If a person eighteen years of age or older is
convicted of violating subsection (b)
or (c) of this section, and
if such person does not act to appeal such conviction within the
time periods described in subdivision (2) of this subsection,
such person's license or privilege to operate a motor vehicle in
this state shall be revoked in accordance with the provisions of
this section.
(2) The clerk of the court in which the person is convicted
as described in subdivision (1) of this subsection shall forward
to the commissioner a transcript of the judgment of conviction.
If the conviction is the judgment of a magistrate court, the
magistrate court clerk shall forward such transcript when the
person convicted has not requested an appeal within twenty days
of the sentencing for such conviction. If the conviction is the
judgment of a circuit court, the circuit clerk shall forward such
transcript when the person convicted has not filed a notice of
intent to file a petition for appeal or writ of error within
thirty days after the judgment was entered.
(3) If, upon examination of the transcript of the judgment
of conviction, the commissioner shall determine that the person
was convicted as described in subdivision (1) of this subsection,
the commissioner shall make and enter an order revoking such
person's license or privilege to operate a motor vehicle in this
state for a period of one year, or, in the event the person is a
student enrolled in a secondary school, for a period of one year
or until the person's twentieth birthday, whichever is the greater period. The order shall contain the reasons for the
revocation and the revocation period. The order of suspension
shall advise the person that because of the receipt of the
court's transcript, a presumption exists that the person named in
the order of suspension is the same person named in the
transcript. The commissioner may grant an administrative hearing
which substantially complies with the requirements of the
provisions of section two, article five-a, chapter seventeen-c of
this code upon a preliminary showing that a possibility exists
that the person named in the notice of conviction is not the same
person whose license is being suspended. Such request for
hearing shall be made within ten days after receipt of a copy of
the order of suspension. The sole purpose of this hearing shall
be for the person requesting the hearing to present evidence that
he or she is not the person named in the notice. In the event
the commissioner grants an administrative hearing, the
commissioner shall stay the license suspension pending the
commissioner's order resulting from the hearing.
(4) For the purposes of this subsection, a person is convicted when such person enters a plea of guilty or is found
guilty by a court or jury.
(g) (f) (1) It shall be unlawful for any parent, custodian
or other legal guardian of a person less than eighteen years of
age who knows that said person is in violation of subsection (b)
or (c) of this section, or who has reasonable cause to believe
that said person's violation of said subsection is imminent, to
fail to report such knowledge or belief to the appropriate school
or law-enforcement officials.
(2) Any person violating this subsection shall be guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars, or shall be confined in jail not
more than one year, or both.
(h) (g) (1) It shall be unlawful for any person to possess
any firearm or any other deadly weapon on any premises which
houses a court of law or in the offices of a family law master.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official
capacity; and
(B) A person exempted from the provisions of this subsection
by order of record entered by a court with jurisdiction over such
premises or offices.
(3) Any person violating this subsection shall be guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars, or shall be confined in jail not
more than one year, or both.
(i) (h) (1) It shall be unlawful for any person to possess
any firearm or any other deadly weapon on any premises which
houses a court of law or in the offices of a family law master
with the intent to commit a crime.
(2) Any person violating this subsection shall be guilty of
a felony, and, upon conviction thereof, shall be imprisoned in
the penitentiary of this state for a definite term of years of
not less than two years nor more than ten years, or fined not
more than five thousand dollars, or both.
NOTE: The purpose of this bill is to require each school to
adopt a plan for their school's productivity and safety and to
set forth policies on teacher's disciplining of students and the
principal and superintendent's suspension and expulsion of students who engage in articulated conduct. The bill also
provides for community involvement and coordination in the
development of such a plan.
The bill also implements the federally mandated requirement
that students who possess firearms be expelled for twelve months
unless modified by a county superintendent and reviewed and
approved by the county board of education.
The bill also adds a responsibility to the governor's
cabinet on children and families to adopt a model productive and
safe school plan and provides that the cabinet shall have the
assistance of the Department of Military Affairs and Public
Safety and a representative of the judicial branch in formulating
the plan.
The bill further amends the existing statute on possession
of weapons on school grounds by mandating that such possession is
a felony and further making a felony the possession of a weapon
within 300 feet of a school's premises.
The bill further allows the costs of the promotion of the
children's fund by the cabinet on children and families to be
assessed against the children's fund.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§18-5A-7 and 8 are new; therefore, strike-throughs and
underscoring have been omitted.
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