ENROLLED
Senate Bill No. 558
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Passed March 11, 2006; to take effect July 1, 2006.]
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AN ACT to
amend and reenact §6-7-2 and §6-7-2a of the Code of West
Virginia, 1931, as amended; to amend and reenact §9A-1-5 of
said code; to amend and reenact §15-2-2 of said code; to amend
and reenact §16-5P-5 of said code; to amend and reenact §17-
2A-3 of said code; to amend and reenact §18-3-1 of said code;
to amend and reenact §19-1A-5 of said code; to amend and
reenact §20-1-5 of said code; to amend and reenact §21-1-2 of
said code; to amend and reenact §21A-4-5 of said code; to
amend and reenact §22-1-6 of said code; to amend and reenact
§29-1-1 of said code; to amend and reenact §29-12-5 of said
code; to amend and reenact §33-2-2 of said code; and to amend
and reenact §60-2-9 of said code, all relating to salary
adjustments for certain public officials.
Be it enacted by the Legislature of West Virginia:
That §6-7-2 and §6-7-2a of the Code of West Virginia, 1931, as
amended, be amended and reenacted; that §9A-1-5 of said code be amended and reenacted; that §15-2-2 of said code be amended and
reenacted; that §16-5P-5 of said code be amended and reenacted;
that §17-2A-3 of said code be amended and reenacted; that §18-3-1
of said code be amended and reenacted; that §19-1A-5 of said code
be amended and reenacted; that §20-1-5 of said code be amended and
reenacted; that §21-1-2 of said code be amended and reenacted; that
§21A-4-5 of said code be amended and reenacted; that §22-1-6 of
said code be amended and reenacted; that §29-1-1 of said code be
amended and reenacted; that §29-12-5 of said code be amended and
reenacted; that §33-2-2 of said code be amended and reenacted; and
that §60-2-9 of said code be amended and reenacted, all to read as
follows:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2. Salaries of certain state officers.
(a) Beginning in the calendar year two thousand five, and for
each calendar year after that, salaries for each of the state
constitutional officers are as follows:
(1) The salary of the Governor is ninety-five thousand dollars
per year;
(2) The salary of the Attorney General is eighty thousand
dollars per year;
(3) The salary of the Auditor is seventy-five thousand dollars
per year;
(4) The salary of the Secretary of State is seventy thousand dollars per year;
(5) The salary of the Commissioner of Agriculture is
seventy-five thousand dollars per year; and
(6) The salary of the State Treasurer is seventy-five thousand
dollars per year.
(b) Notwithstanding the provisions of subsection (a) of this
section, beginning in the calendar year two thousand nine, and for
each calendar year thereafter, salaries for each of the state
constitutional officers shall be as follows:
(1) The salary of the Governor shall be one hundred fifty
thousand dollars per year;
(2) The salary of the Attorney General shall be ninety-five
thousand dollars per year;
(3) The salary of the Auditor shall be ninety-five thousand
dollars per year;
(4) The salary of the Secretary of State shall be ninety-five
thousand dollars per year;
(5) The salary of the Commissioner of Agriculture shall be
ninety-five thousand dollars per year; and
(6) The salary of the State Treasurer shall be ninety-five
thousand dollars per year.
§6-7-2a. Terms of certain appointive state officers; appointment;
qualifications; powers and salaries of such officers.
(a) Each of the following appointive state officers named in
this subsection shall be appointed by the Governor, by and with the advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the
term for which the Governor was elected and until the respective
state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing
qualifications for holding each respective office and each has and
is hereby granted all of the powers and authority and shall perform
all of the functions and services heretofore vested in and
performed by virtue of existing law respecting each office.
Prior to the first day of July, two thousand six, each such
named appointive state officer shall continue to receive the annual
salaries they were receiving as of the effective date of the
enactment of this section in two thousand six, and thereafter,
notwithstanding any other provision of this code to the contrary,
the annual salary of each named appointive state officer shall be
as follows:
Commissioner, Division of Highways, ninety-two thousand five
hundred dollars; Commissioner, Division of Corrections, eighty
thousand dollars; Director, Division of Natural Resources,
seventy-five thousand dollars; Superintendent, State Police,
eighty-five thousand dollars;, Commissioner, Division of Banking,
seventy-five thousand dollars;; Commissioner, Division of Culture
and History, sixty-five thousand dollars; Commissioner, Alcohol
Beverage Control Commission, seventy-five thousand dollars;
Commissioner, Division of Motor Vehicles, seventy-five thousand dollars; Director, Division of Personnel, seventy thousand dollars;
Chairman, Health Care Authority, eighty thousand dollars; members,
Health Care Authority, seventy thousand dollars; Director, Human
Rights Commission, fifty-five thousand dollars; Commissioner,
Division of Labor, seventy thousand dollars; Director, Division of
Veterans' Affairs, sixty-five thousand dollars; Chairperson, Board
of Parole, fifty-five thousand dollars; members, Board of Parole,
fifty thousand dollars; members, Employment Security Review Board,
seventeen thousand dollars; and Commissioner, Bureau of Employment
Programs, seventy-five thousand dollars. Secretaries of the
departments shall be paid an annual salary as follows: Health and
Human Resources, ninety-five thousand dollars; Transportation,
ninety-five thousand dollars; Revenue, ninety-five thousand
dollars; Military Affairs and Public Safety, ninety-five thousand
dollars; Administration, ninety-five thousand dollars; Education
and the Arts, ninety-five thousand dollars; Commerce, ninety-five
thousand dollars; and Environmental Protection, ninety-five
thousand dollars:
Provided, That any increase in the salary of any
current appointive state officer named in this subsection pursuant
to the reenactment of this subsection during the regular session of
the Legislature in two thousand six that exceeds five thousand
dollars shall be paid to such officer or his or her successor
beginning on the first day of July, two thousand six, in annual
increments of five thousand dollars per fiscal year, up to the
maximum salary provided in this subsection.
(b) Each of the state officers named in this subsection shall
continue to be appointed in the manner prescribed in this code and,
prior to the first day of July, two thousand six, each of the state
officers named in this subsection shall continue to receive the
annual salaries he or she was receiving as of the effective date of
the enactment of this section in two thousand six, and shall
thereafter, notwithstanding any other provision of this code to the
contrary, be paid an annual salary as follows:
Director, Board of Risk and Insurance Management, eighty
thousand dollars; Director, Division of Rehabilitation Services,
seventy thousand dollars; Executive Director, Educational
Broadcasting Authority, seventy-five thousand dollars; Secretary,
Library Commission, seventy-two thousand dollars; Director,
Geological and Economic Survey, seventy-five thousand dollars;
Executive Director, Prosecuting Attorneys Institute, seventy
thousand dollars; Executive Director, Public Defender Services,
seventy thousand dollars; Commissioner, Bureau of Senior Services,
seventy-five thousand dollars; Director, State Rail Authority,
sixty-five thousand dollars; Executive Director, Women's
Commission, forty-five thousand dollars; Director, Hospital Finance
Authority, thirty-five thousand dollars; member, Racing Commission,
twelve thousand dollars; Chairman, Public Service Commission,
eighty-five thousand dollars; members, Public Service Commission,
eighty-five thousand dollars; Director, Division of Forestry,
seventy-five thousand dollars; Director, Division of Juvenile Services, eighty thousand dollars; and Executive Director, Regional
Jail and Correctional Facility Authority, eighty thousand dollars:
Provided, That any increase in the salary of any current appointive
state officer named in this subsection pursuant to the reenactment
of this subsection during the regular session of the Legislature in
two thousand six that exceeds five thousand dollars shall be paid
to such officer or his or her successor beginning on the first day
of July, two thousand six, in annual increments of five thousand
dollars per fiscal year, up to the maximum salary provided in this
subsection.
(c) Each of the following appointive state officers named in
this subsection shall be appointed by the Governor, by and with the
advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the
term for which the Governor was elected and until the respective
state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing
qualifications for holding each respective office and each has and
is hereby granted all of the powers and authority and shall perform
all of the functions and services heretofore vested in and
performed by virtue of existing law respecting each office.
Prior to the first day of July, two thousand six, each such
named appointive state officer shall continue to receive the annual
salaries they were receiving as of the effective date of the
enactment of this section in two thousand six, and thereafter, notwithstanding any other provision of this code to the contrary,
the annual salary of each named appointive state officer shall be
as follows:
Commissioner, State Tax Division, ninety-two thousand five
hundred dollars; Commissioner, Insurance Commission, ninety-two
thousand five hundred dollars; Director, Lottery Commission,
ninety-two thousand five hundred dollars; Director, Division of
Homeland Security and Emergency Management, sixty-five thousand
dollars; and Adjutant General, ninety-two thousand five hundred
dollars;
(d) No increase in the salary of any appointive state officer
pursuant to this section shall be paid until and unless the
appointive state officer has first filed with the State Auditor and
the Legislative Auditor a sworn statement, on a form to be
prescribed by the Attorney General, certifying that his or her
spending unit is in compliance with any general law providing for
a salary increase for his or her employees. The Attorney General
shall prepare and distribute the form to the affected spending
units.
CHAPTER 9A. VETERANS' AFFAIRS.
ARTICLE 1. DIVISION OF VETERANS' AFFAIRS.
§9A-1-5. Compensation of director, veterans' affairs officers,
assistants and employees; payment to Veterans'
Council members; traveling expenses; meetings of
Veterans' Council.
The director shall receive an annual salary as provided in
section two-a, article seven, chapter six of this code and
necessary traveling expenses incident to the performance of his or
her duties. The salaries of the veterans' affairs officers,
assistants and employees shall be fixed by the Veterans' Council.
The members of the Veterans' Council shall receive no salary, but
each member shall receive the same compensation and expense
reimbursement as is paid to members of the Legislature for their
interim duties as recommended by the Citizens Legislative
Compensation Commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties. The
requisition for such expenses and traveling expenses shall be
accompanied by a sworn and itemized statement, which shall be filed
with the Auditor and permanently preserved as a public record. The
Veterans' Council shall hold its initial meeting on the call of the
Governor, and thereafter shall meet on the call of its chairman,
except as otherwise provided. With the exception of the first
three meetings of the Veterans' Council, none of which shall be of
a duration longer than two weeks each, for organizational purposes,
the Veterans' Council shall meet not more than once every two
months at such times as may be determined by and upon the call of
the chairman for a period of not more than two days, unless there
should be an emergency requiring a special meeting or for a longer
period and so declared and called by the Governor or by the
chairman with the approval of the Governor. A majority of the members of the Veterans' Council shall constitute a quorum for the
conduct of official business.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-2. Superintendent; departmental headquarters; continuation
of the State Police.
The Department of Public Safety, heretofore established, shall
be continued and hereafter shall be known as the West Virginia
State Police. Wherever the words "Department of Public Safety" or
"Division of Public Safety" appear in this code, they shall mean
the West Virginia State Police. The Governor shall nominate and,
by and with the advice and consent of the Senate, appoint a
superintendent to be the executive and administrative head of the
department. The superintendent shall be paid an annual salary as
provided in section two-a, article seven, chapter six of this code.
The superintendent shall hold the rank of colonel and is entitled
to all rights, benefits and privileges of regularly enlisted
members. On the date of his or her appointment, the superintendent
shall be at least thirty years of age. Before entering upon the
discharge of the duties of his or her office, he or she shall
execute a bond in the penalty of ten thousand dollars, payable to
the State of West Virginia and conditioned upon the faithful
performance of his or her duties. Such bond both as to form and
security shall be approved as to form by the Attorney General and
to sufficiency by the Governor.
Before entering upon the duties of his or her office, the
superintendent shall subscribe to the oath hereinafter provided.
The headquarters of the department shall be located in Kanawha
County.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5P. SENIOR SERVICES.
§16-5P-5. Compensation; traveling expenses.
The Commissioner of the Bureau of Senior Services shall
receive an annual salary as provided in section two-a, article
seven, chapter six of this code and the necessary traveling
expenses incident to the performance of his or her duties.
Requisition for traveling expenses shall be accompanied by a sworn
itemized statement which shall be filed with the Auditor and
preserved as a public record.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 2A. WEST VIRGINIA COMMISSIONER OF HIGHWAYS.
§17-2A-3. Salary and expenses.
The commissioner shall receive an annual salary as provided in
section two-a, article seven, chapter six of this code. He or she
shall be allowed and paid necessary traveling expenses incident to
the performance of his or her duties. Statements covering such
expenses shall be itemized and verified by the commissioner.
CHAPTER 18. EDUCATION.
ARTICLE 3. STATE SUPERINTENDENT OF SCHOOLS.
§18-3-1. Appointment; qualifications; compensation; traveling
expenses; office and residence; evaluation.
There shall be appointed by the state board a State
Superintendent of Schools who shall serve at the will and pleasure
of the state board. He or she shall be a person of good moral
character, of recognized ability as a school administrator, holding
at least a master's degree in educational administration, and shall
have had not less than five years of experience in public school
work. He or she shall receive an annual salary set by the state
board, to be paid monthly: Provided, That the annual salary may not
exceed one hundred forty-six thousand one hundred dollars:
Provided, however, That after the thirtieth day of June, two
thousand six, the annual salary may not exceed one hundred seventy-
five thousand dollars. The state superintendent also shall receive
necessary traveling expenses incident to the performance of his or
her duties to be paid out of the General School Fund upon warrants
of the State Auditor. The state superintendent shall have his or
her office at the State Capitol. The state board shall report to
the Legislative Oversight Commission on Education Accountability
upon request concerning its progress during any hiring process for
a state superintendent.
The state board annually shall evaluate the performance of the
state superintendent and publicly announce the results of the
evaluation.
CHAPTER 19. AGRICULTURE.
ARTICLE 1A. DIVISION OF FORESTRY.
§19-1A-5. Director of Division of Forestry; appointment;
qualifications
.
The Director of the Division of Forestry shall be appointed by
the Governor, by and with the advice and consent of the Senate, and
shall serve at the will and pleasure of the Governor. The director
shall be a graduate of a school of forestry accredited by the
Society of American Foresters and have a minimum of ten years'
experience in forest management. The director shall be paid an
annual salary as provided in section two-a, article seven, chapter
six of this code:
Provided, That the director's salary shall be
paid solely from budget appropriations to the division.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-5. Salary, expenses, oath and bond of director.
The director shall receive an annual salary as provided in
section two-a, article seven, chapter six of this code, payable in
equal monthly installments and shall be allowed and paid necessary
expenses incident to the performance of his or her official duties.
Prior to the assumption of the duties of his or her office, he or
she shall take and subscribe to the oath required of public
officers by the Constitution of West Virginia and shall execute a
bond, with surety approved by the Governor, in the penal sum of ten
thousand dollars, which executed oath and bond shall be filed in
the office of the Secretary of State. Premiums on the bond shall be paid from division funds.
CHAPTER 21. LABOR.
ARTICLE 1. DIVISION OF LABOR.
§21-1-2. Appointment of Commissioner of Labor; qualifications;
term of office; salary
.
The state Commissioner of Labor shall be appointed by the
Governor, by and with the advice and consent of the Senate. He or
she shall be a competent person, who is identified with the labor
interests of the state. The Commissioner of Labor in office on the
effective date of this section shall, unless sooner removed,
continue to serve until his or her term expires and his or her
successor has been appointed and has qualified. On or before the
first day of April, one thousand nine hundred forty-one, and on or
before the first day of April of each fourth year thereafter, the
Governor shall appoint a Commissioner of Labor to serve for a term
of four years, commencing on said first day of April. The
commissioner shall receive an annual salary as provided in section
two-a, article seven, chapter six of this code.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 4. BOARD OF REVIEW.
§21A-4-5. Compensation and travel expenses.
Each member of the board shall receive an annual salary as
provided in section two-a, article seven, chapter six of this code
and the necessary traveling expenses incurred in the performance of his or her duties.
Requisition for traveling expenses shall be accompanied by a
sworn and itemized statement which shall be filed with the Auditor
and preserved as a public record.
The salaries and expenses of the members shall be paid from
the administration fund.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-6. Secretary of the Department of Environmental Protection.
(a) The secretary is the chief executive officer of the
division. Subject to section seven of this article and other
provisions of law, the secretary shall organize the department into
such offices, sections, agencies and other units of activity as may
be found by the secretary to be desirable for the orderly,
efficient and economical administration of the department and for
the accomplishment of its objects and purposes. The secretary may
appoint a deputy secretary, chief of staff, assistants, hearing
officers, clerks, stenographers and other officers, technical
personnel and employees needed for the operation of the department
and may prescribe their powers and duties and fix their
compensation within amounts appropriated.
(b) The secretary has the power to and may designate
supervisory officers or other officers or employees of the
department to substitute for him or her on any board or commission
established under this code or to sit in his or her place in any hearings, appeals, meetings or other activities with such
substitute having the same powers, duties, authority and
responsibility as the secretary. The secretary has the power to
delegate, as he or she considers appropriate, to supervisory
officers or other officers or employees of the department his or
her powers, duties, authority and responsibility relating to
issuing permits, hiring and training inspectors and other employees
of the department, conducting hearings and appeals and such other
duties and functions set forth in this chapter or elsewhere in this
code.
(c) The secretary has responsibility for the conduct of the
intergovernmental relations of the department, including assuring:
(1) That the department carries out its functions in a manner
which supplements and complements the environmental policies,
programs and procedures of the federal government, other state
governments and other instrumentalities of this state; and
(2) That appropriate officers and employees of the division
consult with individuals responsible for making policy relating to
environmental issues in the federal government, other state
governments and other instrumentalities of this state concerning
differences over environmental policies, programs and procedures
and concerning the impact of statutory law and rules upon the
environment of this state.
(d) In addition to other powers, duties and responsibilities
granted and assigned to the secretary by this chapter, the secretary is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the
"Department of Environmental Protection" any contract or agreement
with the federal government or its departments or agencies,
subdivisions of the state, corporations, associations, partnerships
or individuals:
Provided, That the powers granted to the secretary
to enter into agreements or contracts and to make expenditures and
obligations of public funds under this subdivision may not exceed
or be interpreted as authority to exceed the powers granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection
methods and disseminate information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violations of
statutes or rules which the division is charged with enforcing; to
serve and execute warrants and processes; to make arrests; issue
orders, which for the purposes of this chapter include consent
agreements; and to otherwise enforce the statutes or rules which
the division is charged with enforcing;
(4) Acquire for the state in the name of the "Department of
Environmental Protection" by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the Department of Environmental Protection, gifts, donations,
contributions, bequests or devises of money, security or property,
both real and personal, and any interest in property;
(5) Provide for workshops, training programs and other
educational programs, apart from or in cooperation with other
governmental agencies, necessary to ensure adequate standards of
public service in the department. The secretary may provide for
technical training and specialized instruction of any employee.
Approved educational programs, training and instruction time may be
compensated for as a part of regular employment. The secretary is
authorized to pay out of federal or state funds, or both, as such
funds are available, fees and expenses incidental to such
educational programs, training, and instruction. Eligibility for
participation by employees will be in accordance with guidelines
established by the secretary;
(6) Issue certifications required under 33 U. S. C. §1341
of the federal Clean Water Act and enter into agreements in
accordance with the provisions of section seven-a, article eleven
of this chapter. Prior to issuing any certification the secretary
shall solicit from the Division of Natural Resources reports and
comments concerning the possible certification. The Division of
Natural Resources shall direct the reports and comments to the
secretary for consideration; and
(7) Notwithstanding any provisions of this code to the
contrary, employ in-house counsel to perform all legal services for the secretary and the department, including, but not limited to,
representing the secretary, any chief, the department or any office
thereof in any administrative proceeding or in any proceeding in
any state or federal court. Additionally, the secretary may call
upon the Attorney General for legal assistance and representation
as provided by law.
(e) The secretary shall be appointed by the Governor, by and
with the advice and consent of the Senate, and serves at the will
and pleasure of the Governor.
(f) At the time of his or her initial appointment, the
secretary must be at least thirty years old and must be selected
with special reference and consideration given to his or her
administrative experience and ability, to his or her demonstrated
interest in the effective and responsible regulation of the energy
industry and the conservation and wise use of natural resources.
The secretary must have at least a bachelor's degree in a related
field and at least three years of experience in a position of
responsible charge in at least one discipline relating to the
duties and responsibilities for which the secretary will be
responsible upon assumption of the office. The secretary may not
be a candidate for or hold any other public office, may not be a
member of any political party committee and shall immediately
forfeit and vacate his or her office as secretary in the event he
or she becomes a candidate for or accepts appointment to any other
public office or political party committee.
(g) The secretary shall receive an annual salary as provided
in section two-a, article seven, chapter six of this code and will
be allowed and paid necessary expenses incident to the performance
of his or her official duties. Prior to the assumption of the
duties of his or her office, the secretary shall take and subscribe
to the oath required of public officers prescribed by section five,
article IV of the Constitution of West Virginia and shall execute
a bond, with surety approved by the Governor, in the penal sum of
ten thousand dollars, which executed oath and bond will be filed in
the Office of the Secretary of State. Premiums on the bond will be
paid from the department funds.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 1. DIVISION OF CULTURE AND HISTORY.
§29-1-1. Division of Culture and History continued; sections and
commissions; purposes; definitions; effective date.
(a) The Division of Culture and History and the office of
Commissioner of Culture and History heretofore created are hereby
continued. The Governor shall nominate and, by and with the advice
and consent of the Senate, appoint the commissioner, who shall be
the chief executive officer of the division and shall be paid an
annual salary as provided in section two-a, article seven, chapter
six of this code. The commissioner so appointed shall have: (1) A
bachelor's degree in one of the fine arts, social sciences, library
science or a related field; or (2) four years' experience in the
administration of museum management, public administration, arts, history or a related field.
(b) The division shall consist of five sections as follows:
(1) The arts section;
(2) The archives and history section;
(3) The museums section;
(4) The historic preservation section; and
(5) The administrative section.
(c) The division shall also consist of two citizens
commissions as follows:
(1) A Commission on the Arts; and
(2) A Commission on Archives and History.
(d) The commissioner shall exercise control and supervision of
the division and shall be responsible for the projects, programs
and actions of each of its sections. The purpose and duty of the
division is to advance, foster and promote the creative and
performing arts and crafts, including both indoor and outdoor
exhibits and performances; to advance, foster, promote, identify,
register, acquire, mark and care for historical, prehistorical,
archaeological and significant architectural sites, structures and
objects in the state; to encourage the promotion, preservation and
development of significant sites, structures and objects through
the use of economic development activities such as loans,
subsidies, grants and other incentives; to coordinate all cultural,
historical and artistic activities in state government and at
state-owned facilities; to acquire, preserve and classify books, documents, records and memorabilia of historical interest or
importance; and, in general, to do all things necessary or
convenient to preserve and advance the culture of the state.
(e) The division shall have jurisdiction and control and may
set and collect fees for the use of all space in the building
presently known as the West Virginia Science and Culture Center,
including the deck and courtyards forming an integral part thereof;
the building presently known as West Virginia Independence Hall in
Wheeling, including all the grounds and appurtenances thereof;
"Camp Washington Carver" in Fayette County, as provided in section
fourteen of this article; and any other sites as may be transferred
to or acquired by the division. Notwithstanding any provision of
this code to the contrary, including the provisions of article one,
chapter five-b of this code, beginning on and after the first day
of July, one thousand nine hundred ninety-three, the division shall
have responsibility for, and control of, all visitor touring and
visitor tour guide activities within the State Capitol Building at
Charleston.
(f) For the purposes of this article, "commissioner" means the
Commissioner of Culture and History, and "division" means the
Division of Culture and History.
ARTICLE 12. STATE INSURANCE.
§29-12-5. Powers and duties of board.
(a)(1) The board has, without limitation and in its discretion
as it seems necessary for the benefit of the insurance program, general supervision and control over the insurance of state
property, activities and responsibilities, including:
(A) The acquisition and cancellation of state insurance;
(B) Determination of the kind or kinds of coverage;
(C) Determination of the amount or limits for each kind of
coverage;
(D) Determination of the conditions, limitations, exclusions,
endorsements, amendments and deductible forms of insurance
coverage;
(E) Inspections or examinations relating to insurance coverage
of state property, activities and responsibilities;
(F) Reinsurance; and
(G) Any and all matters, factors and considerations entering
into negotiations for advantageous rates on and coverage of such
state property, activities and responsibilities.
(2) The board shall endeavor to secure reasonably broad
protection against loss, damage or liability to state property and
on account of state activities and responsibilities by proper,
adequate, available and affordable insurance coverage and through
the introduction and employment of sound and accepted principles of
insurance, methods of protection and principles of loss control and
risk.
(3) The board is not required to provide insurance for every
state property, activity or responsibility.
(4) Any policy of insurance purchased or contracted for by the board shall provide that the insurer shall be barred and estopped
from relying upon the constitutional immunity of the State of West
Virginia against claims or suits: Provided, That nothing herein
shall bar a state agency or state instrumentality from relying on
the constitutional immunity granted the State of West Virginia
against claims or suits arising from or out of any state property,
activity or responsibility not covered by a policy or policies of
insurance: Provided, however, That nothing herein shall bar the
insurer of political subdivisions from relying upon any statutory
immunity granted such political subdivisions against claims or
suits.
(5) The board shall make a complete survey of all presently
owned and subsequently acquired state property subject to insurance
coverage by any form of insurance, which survey shall include and
reflect inspections, appraisals, exposures, fire hazards,
construction and any other objectives or factors affecting or which
might affect the insurance protection and coverage required.
(6) The board shall keep itself currently informed on new and
continuing state activities and responsibilities within the
insurance coverage herein contemplated. The board shall work
closely in cooperation with the State Fire Marshal's office in
applying the rules of that office insofar as the appropriations and
other factors peculiar to state property will permit.
(7) The board may negotiate and effect settlement of any and
all insurance claims arising on or incident to losses of and damages to covered state properties, activities and
responsibilities hereunder and shall have authority to execute and
deliver proper releases of all such claims when settled. The board
may adopt rules and procedures for handling, negotiating and
settlement of all such claims. Any discussion or consideration of
the financial or personal information of an insured may be held by
the board in executive session closed to the public,
notwithstanding the provisions of article nine-a, chapter six of
this code.
(8) The board may employ an executive director and such other
employees, including legal counsel, as may be necessary to carry
out its duties. The executive director shall receive an annual
salary as provided in section two-a, article seven, chapter six of
this code. The legal counsel may represent the board before any
judicial or administrative tribunal and perform such other duties
as may be requested by the board.
(9) The board may enter into any contracts necessary to the
execution of the powers granted to it by this article or to further
the intent of this article.
(10) The board may make rules governing its functions and
operations and the procurement of state insurance. Except where
otherwise provided by statute, rules of the board are subject to
the provisions of article three, chapter twenty-nine-a of this
code.
(11) The funds received by the board, including, but not limited to, state agency premiums, mine subsidence premiums and
political subdivision premiums, shall be deposited with the West
Virginia Investment Management Board with the interest income and
returns on investment a proper credit to such property insurance
trust fund or liability insurance trust fund as applicable.
(b) (1) Definitions. -- The following words and phrases when
used in this subsection, for the purposes of this subsection, have
the meanings respectively ascribed to them in this subsection;
(A) "Political subdivision" has the same meaning as in section
three, article twelve-a of this chapter;
(B) "Charitable" or "public service organization" means any
hospital in this state which has been certified as a critical
access hospital by the federal Centers for Medicare and Medicaid
upon the designation of the state Office of Rural Health Policy,
the Office of Community and Rural Health Services, the Bureau for
Public Health or the Department of Health and Human Resources and
any bona fide, not-for-profit, tax-exempt, benevolent, educational,
philanthropic, humane, patriotic, civic, religious, eleemosynary,
incorporated or unincorporated association or organization or a
rescue unit or other similar volunteer community service
organization or association, but does not include any nonprofit
association or organization, whether incorporated or not, which is
organized primarily for the purposes of influencing legislation or
supporting or promoting the campaign of any candidate for public
office; and
(C) "Emergency medical service agency" has the same meaning as
in section three, article four-c, chapter sixteen of this code.
(2) If requested by a political subdivision, a charitable or
public service organization or an emergency medical services
agency, the board may, but is not required to, provide property and
liability insurance to insure the property, activities and
responsibilities of the political subdivision, charitable or public
service organization or emergency medical services agency. The
board may enter into any contract necessary to the execution of the
powers granted by this article or to further the intent of this
article.
(A) Property insurance provided by the board pursuant to this
subsection may also include insurance on property leased to or
loaned to the political subdivision, a charitable or public service
organization or an emergency medical services agency which is
required to be insured under a written agreement.
(B) The cost of insurance, as determined by the board, shall
be paid by the political subdivision, the charitable or public
service organization or the emergency medical services agency and
may include administrative expenses. For purposes of this section,
if an emergency medical services agency is a for-profit entity, its
claims history may not adversely affect other participants' rates
in the same class.
(c)(1) The board has general supervision and control over the
optional medical liability insurance programs providing coverage to health care providers as authorized by the provisions of article
twelve-b of this chapter. The board is hereby granted and may
exercise all powers necessary or appropriate to carry out and
effectuate the purposes of this article.
(2) The board shall:
(A) Administer the preferred medical liability program and the
high risk medical liability program and exercise and perform other
powers, duties and functions specified in this article;
(B) Obtain and implement, at least annually, from an
independent outside source, such as a medical liability actuary or
a rating organization experienced with the medical liability line
of insurance, written rating plans for the preferred medical
liability program and high-risk medical liability program on which
premiums shall be based;
(C) Prepare and annually review written underwriting criteria
for the preferred medical liability program and the high-risk
medical liability program. The board may utilize review panels,
including, but not limited to, the same specialty review panels to
assist in establishing criteria;
(D) Prepare and publish, before each regular session of the
Legislature, separate summaries for the preferred medical liability
program and high-risk medical liability program activity during the
preceding fiscal year, each summary to be included in the Board of
Risk and Insurance Management audited financial statements as
"other financial information" and which shall include a balance sheet, income statement and cash flow statement, an actuarial
opinion addressing adequacy of reserves, the highest and lowest
premiums assessed, the number of claims filed with the program by
provider type, the number of judgments and amounts paid from the
program, the number of settlements and amounts paid from the
program and the number of dismissals without payment;
(E) Determine and annually review the claims history debit or
surcharge for the high-risk medical liability program;
(F) Determine and annually review the criteria for transfer
from the preferred medical liability program to the high-risk
medical liability program;
(G) Determine and annually review the role of independent
agents, the amount of commission, if any, to be paid therefor and
agent appointment criteria;
(H) Study and annually evaluate the operation of the preferred
medical liability program and the high-risk medical liability
program and make recommendations to the Legislature, as may be
appropriate, to ensure their viability, including, but not limited
to, recommendations for civil justice reform with an associated
cost-benefit analysis, recommendations on the feasibility and
desirability of a plan which would require all health care
providers in the state to participate with an associated
cost-benefit analysis, recommendations on additional funding of
other state-run insurance plans with an associated cost-benefit
analysis and recommendations on the desirability of ceasing to offer a state plan with an associated analysis of a potential
transfer to the private sector with a cost-benefit analysis,
including impact on premiums;
(I) Establish a five-year financial plan to ensure an adequate
premium base to cover the long-tail nature of the claims-made
coverage provided by the preferred medical liability program and
the high-risk medical liability program. The plan shall be
designed to meet the program's estimated total financial
requirements, taking into account all revenues projected to be made
available to the program and apportioning necessary costs equitably
among participating classes of health care providers. For these
purposes, the board shall:
(i) Retain the services of an impartial, professional actuary,
with demonstrated experience in analysis of large group malpractice
plans, to estimate the total financial requirements of the program
for each fiscal year and to review and render written professional
opinions as to financial plans proposed by the board. The actuary
shall also assist in the development of alternative financing
options and perform any other services requested by the board or
the executive director. All reasonable fees and expenses for
actuarial services shall be paid by the board. Any financial plan
or modifications to a financial plan approved or proposed by the
board pursuant to this section shall be submitted to and reviewed
by the actuary and may not be finally approved and submitted to the
governor and to the Legislature without the actuary's written professional opinion that the plan may be reasonably expected to
generate sufficient revenues to meet all estimated program and
administrative costs, including incurred but not reported claims,
for the fiscal year for which the plan is proposed. The actuary's
opinion for any fiscal year shall include a requirement for
establishment of a reserve fund;
(ii) Submit its final, approved five-year financial plan,
after obtaining the necessary actuary's opinion, to the governor
and to the Legislature no later than the first day of January
preceding the fiscal year. The financial plan for a fiscal year
becomes effective and shall be implemented by the executive
director on the first day of July of the fiscal year. In addition
to each final, approved financial plan required under this section,
the board shall also simultaneously submit an audited financial
statement based on generally accepted accounting practices (GAAP)
and which shall include allowances for incurred but not reported
claims: Provided, That the financial statement and the
accrual-based financial plan restatement shall not affect the
approved financial plan. The provisions of chapter twenty-nine-a
of this code shall not apply to the preparation, approval and
implementation of the financial plans required by this section;
(iii) Submit to the governor and the Legislature a prospective
five-year financial plan beginning on the first day of January, two
thousand three, and every year thereafter, for the programs
established by the provisions of article twelve-b of this chapter. Factors that the board shall consider include, but shall not be
limited to, the trends for the program and the industry; claims
history, number and category of participants in each program;
settlements and claims payments; and judicial results;
(iv) Obtain annually certification from participants that they
have made a diligent search for comparable coverage in the
voluntary insurance market and have been unable to obtain the same;
(J) Meet on at least a quarterly basis to review
implementation of its current financial plan in light of the actual
experience of the medical liability programs established in article
twelve-b of this chapter. The board shall review actual costs
incurred, any revised cost estimates provided by the actuary,
expenditures and any other factors affecting the fiscal stability
of the plan and may make any additional modifications to the plan
necessary to ensure that the total financial requirements of these
programs for the current fiscal year are met;
(K) To analyze the benefit of and necessity for excess verdict
liability coverage;
(L) Consider purchasing reinsurance, in the amounts as it may,
from time to time, determine is appropriate, and the cost thereof
shall be considered to be an operating expense of the board;
(M) Make available to participants optional extended reporting
coverage or tail coverage: Provided, That, at least five working
days prior to offering such coverage to a participant or
participants, the board shall notify the President of the Senate and the Speaker of the House of Delegates in writing of its
intention to do so and such notice shall include the terms and
conditions of the coverage proposed;
(N) Review and approve, reject or modify rules that are
proposed by the executive director to implement, clarify or explain
administration of the preferred medical liability program and the
high-risk medical liability program. Notwithstanding any
provisions in this code to the contrary, rules promulgated pursuant
to this paragraph are not subject to the provisions of sections
nine through sixteen, inclusive, article three, chapter
twenty-nine-a of this code. The board shall comply with the
remaining provisions of article three and shall hold hearings or
receive public comments before promulgating any proposed rule filed
with the Secretary of State: Provided, That the initial rules
proposed by the executive director and promulgated by the board
shall become effective upon approval by the board notwithstanding
any provision of this code;
(O) Enter into settlements and structured settlement
agreements whenever appropriate. The policy may not require as a
condition precedent to settlement or compromise of any claim the
consent or acquiescence of the policyholder. The board may own or
assign any annuity purchased by the board to a company licensed to
do business in the state;
(P) Refuse to provide insurance coverage for individual
physicians whose prior loss experience or current professional training and capability are such that the physician represents an
unacceptable risk of loss if coverage is provided;
(Q) Terminate coverage for nonpayment of premiums upon written
notice of the termination forwarded to the health care provider not
less than thirty days prior to termination of coverage;
(R) Assign coverage or transfer insurance obligations and/or
risks of existing or in-force contracts of insurance to a
third-party medical professional liability insurance carrier with
the comparable coverage conditions as determined by the board. Any
transfer of obligation or risk shall effect a novation of the
transferred contract of insurance and if the terms of the
assumption reinsurance agreement extinguish all liability of the
board and the State of West Virginia, such extinguishment shall be
absolute as to any and all parties; and
(S) Meet and consult with and consider recommendations from
the Medical Malpractice Advisory Panel established by the
provisions of article twelve-b of this chapter.
(d) If, after the first day of September, two thousand two,
the board has assigned coverages or transferred all insurance
obligations and/or risks of existing or in-force contracts of
insurance to a third-party medical professional liability insurance
carrier, and the board otherwise has no covered participants, then
the board shall not thereafter offer or provide professional
liability insurance to any health care provider pursuant to the
provisions of subsection (c) of this section or the provisions of article twelve-b of this chapter unless the Legislature adopts a
concurrent resolution authorizing the board to reestablish medical
liability insurance programs.
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-2. Compensation and expenses of commissioner and employees;
location of office.
The commissioner shall receive an annual salary as provided in
section two-a, article seven, chapter six of this code and actual
expenses incurred in the performance of official business, which
compensation shall be in full for all services. The office of the
commissioner shall be maintained in the capitol or other suitable
place in Charleston. The commissioner may employ such persons and
incur such expenses as may be necessary in the discharge of his
duties and shall fix the compensation of such employees, but such
compensation shall not exceed the appropriation therefor. The
commissioner may reimburse employees for reasonable expenses
incurred for job-related training and educational seminars and
courses. All compensation for salaries and expenses of the
commissioner and his employees shall be paid monthly out of the
State Treasury by requisition upon the Auditor, properly certified
by the commissioner.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 2. ALCOHOL BEVERAGE CONTROL COMMISSIONER.
§60-2-9. Salary and expenses.
The commissioner shall receive an annual salary as provided in
section two-a, article seven, chapter six of this code, and shall
be paid actual and necessary traveling expenses incurred in
performance of the official duties of the office.
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