(a) It is the intent of the Legislature to ensure a continuity of essential government operations when the Governor has failed to approve a budget bill that has been acted upon and passed by the Legislature pursuant to section fifty-one, article VI of the Constitution of West Virginia.

(b) If the Governor vetoes a budget bill for a successive fiscal year, and such veto is not able to be timely acted upon by the Legislature prior to the beginning of the intended successive fiscal year, then the Legislature may provide for a supplemental appropriation to allow temporary continuity of essential government functions and payment of certain expenses of the State.

(c) The supplemental appropriation authorized by this article is intended to provide brief temporary spending authority occasioned by a Governor’s veto of a budget bill and expiration of the fiscal year without a budget bill approved for the next fiscal year.

(d) Subdivision (12) of section fifty-one, article VI of the Constitution of West Virginia authorizes the Legislature to enact such laws as may be necessary and proper to carry out the provisions of section fifty-one, article VI. The Legislature finds that there does not exist in law a remedy for a situation in which the Legislature acts on a budget bill and is unable to timely meet or override the objections of Governor prior to the start of the next fiscal year.

(e) This brief temporary spending authority is intended to allow time for the Legislature to take such action as may be necessary to meet or override the objections of the Governor, and is not intended to replace or substitute the necessity for a budget bill for the entire fiscal year.

§4-11B-2. Definitions.

(a) If a budget bill for a successive fiscal year has not been approved by the Governor within ten days of the start of the successive fiscal year, then the Governor shall call the Legislature into extraordinary session, or amend the call if the Legislature is already in extraordinary session, for the purpose of passage of a supplemental appropriation to allow for the temporary continuity of essential government services and payment of certain expenses of the State during the successive fiscal year.

(b) The Governor shall present a proposed supplemental appropriation bill to the Legislature, and the Legislature may amend such proposal: Provided, That the supplemental appropriation provided for under this section shall be limited to the following:

(1) Monies shall be expended only for those essential government positions, services and expenses of the State that have been identified and determined in accordance with section four of this article;

(2) The supplemental appropriation shall only take effect upon the start of the fiscal year in which the budget bill has not been approved by the Governor;

(3) The monies for the supplemental appropriation shall only be paid from applicable federal monies and the following non-federal monies:

(i) The Governor’s civil contingent fund as provided in W.Va. Code § 5-1-18; and, upon expiring all funds therein,

(ii) The Revenue Shortfall Reserve Fund as provided in W.Va. Code § 11B-2-20; and

(4) The supplemental appropriation shall immediately cease upon either of the following occurrences:

(i) The approval of a budget bill by the Governor; or

(ii) The expenditure of all monies authorized in subdivision (3) of this subsection.

(c) In passing the supplemental appropriation provided for in this section, the Legislature is not bound strictly by the levels or categories of essential positions and services determined pursuant to section four of this article. The Legislature may amend the levels or categories to include or exclude positions, services or expenses that have been determined to be the essential positions, services and expenses, and shall designate which positions, services and expenses to be included as part of the supplemental appropriation.

(d) Any supplemental appropriation authorized under this section shall take into account the limited purpose of the appropriation and monies available for such positions, services and expenses.

(e) Those employees whose positions were not included or funded in the special appropriation provided for under this section shall be furloughed in accordance with section five of this article.

§4-11B-4. Determination of essential government functions and expenses.

(a) On or before June 15, 2016, and on or before April 1 of each successive year, the Board of Public Works shall meet and finalize the following:

(1) Identify those positions and services that the Board deems essential government functions which must remain in operation and paid for during a temporary interruption of government services created by the absence of a budget bill for a fiscal year; and

(2) Identify those expenses of the state that the Board deems must be paid to preserve bonds, notes, federal funds, and other necessary services or agreements during a temporary interruption of government services created by the absence of a budget bill for a fiscal year.

(b) In ascertaining those personnel positions and services that are essential government functions during a temporary interruption of government services, the Board of Public Works shall classify those positions and services deemed “essential” by levels or categories, and make clear the financial cost per week of each such level or category of essential positions and services.

(c) In ascertaining those expenses of the State that must be paid during a temporary interruption of government services, the Board of Public Works shall identify those expenses by necessity, and make clear the financial cost of each such expense, along with the time period in which it must be paid, the consequences of not paying such expense, and whether a grace period or contractual clause allows for late payment of such expense.

(d) In making these determinations, the Board of Public Works shall take into account the limited amount of funds that may be available to appropriate for the designated essential positions, services, and expenses.

(e) To assist in making these determinations, the Board of Public Works may utilize the services and assistance of any government entity within the Executive Branch, including but not limited to, the Division of Personnel and the Secretary of the Department of Revenue: Provided, That any such assistance shall be provided without cost to the Board of Public Works: Provided, however, That nothing shall be construed to prevent the Board from seeking or receiving input from the Legislative and Judicial Branches as to positions, services and expenses each respective branch deems essential.

(f) On or before June 20, 2016, and on or before May 1 of each year thereafter, the Board of Public Works shall file a report of these determinations with the Secretary of State and provide a copy of such report to the following individuals:

(i) The Speaker of the House of Delegates;

(ii) The President of the Senate;

(iii) The Legislative Auditor;

(iv) The Chief Justice of the West Virginia Supreme Court of Appeals; and

(v) The members of the Board of Public Works.

§4-11B-5. Furlough of employees whose positions not provided for in supplemental appropriation.

(a) A state employee: (i) whose position is not included within the special appropriation provided in section three of this article, or (ii) whose position was originally included in the special appropriation but whose position is no longer funded as a result of the expiration of monies for the special appropriation, shall be furloughed as herein provided.

(b) The furlough shall begin the first day of the fiscal year in which there is a not an approved budget bill, and shall remain in place until a budget bill is approved by the Governor.

(c) On or before June 25, 2016, the Division of Personnel shall provide by emergency legislative rule necessary guidelines and regulations governing the furlough of state employees: Provided, That the Division of Personnel shall thereafter prepare and file a legislative rule pursuant to chapter 29A of this code for consideration by the Legislature during the 2017 Regular Session.

(d) Any rule, regulation, guideline governing state employees furloughed as a result of a temporary interruption of government services created by the absence of a budget bill for the fiscal year shall contain, at a minimum, the following provisions:

(1) The employee shall not be paid while furloughed: Provided, That nothing shall be construed as prohibiting the payment of such monies during the time of furlough as part of any subsequent budget bill approved by the Governor, or supplemental appropriation that is passed after approval by the Governor of the budget bill.

(2) The employee shall not perform any of his or her public employment duties during the period of furlough, nor volunteer any such service without pay during the period of furlough.

(3) The non-payment status shall not be deemed a termination of the employee’s state service or employment.

(4) The employee may not take paid annual or sick leave while furloughed: Provided, That his or her accrued leave balances shall not be diminished and shall continue to accrue annual and sick leave while on furlough.

(5) The employee shall continue to possess the same medical benefits as otherwise available to the employee, and in the same manner, in which the employee would have if he or she were not furloughed: Provided, That the payment of medical benefits is included within the special appropriation provided under section three of this article: Provided, however, this shall only apply in situations in which the State, as employer, pays a portion of the medical benefit. Any portion owed by the employee while on furlough shall be deferred for the period of furlough.

(6) The employee shall be given employment credit for the length of the furlough for purposes of the retirement year calculation: Provided, That retirement contributions shall only be paid if included as part of the supplemental appropriation.

(7) Placement of an employee on furlough under this section shall not give rise to the right of a grievance or appeal to the Public Employees Grievance Board.

(8) The employee shall be ineligible for unemployment compensation while furloughed. Any employee who rejects the offer of furlough may deem the furlough as a reduction in force and seek any unemployment compensation to which he or she may be eligible for the employer’s reduction in force.

(e) Furloughs provided for in this section shall not extend for more than 30 days.

CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARDOF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

(a) Notwithstanding any provision of this section, the Governor may reduce appropriations according to any of the methods set forth in sections twenty‑one and twenty‑two of this article. The Governor may, in lieu of imposing a reduction in appropriations, request an appropriation by the Legislature from the Revenue Shortfall Reserve Fund established in this section.

(b) The Revenue Shortfall Reserve Fund is continued within the State Treasury. The Revenue Shortfall Reserve Fund shall be funded continuously and on a revolving basis in accordance with this subsection up to an aggregate amount not to exceed thirteen percent of the total appropriations from the State Fund, General Revenue, for the fiscal year just ended. The Revenue Shortfall Reserve Fund shall be funded as set forth in this subsection from surplus revenues, if any, in the State Fund, General Revenue, as the surplus revenues may accrue from time to time.

Within sixty days of the end of each fiscal year, the secretary shall cause to be deposited into the Revenue Shortfall Reserve Fund such amount of the first fifty percent of all surplus revenues, if any, determined to have accrued during the fiscal year just ended, as may be necessary to bring the balance of the Revenue Shortfall Reserve Fund to thirteen percent of the total appropriations from the State Fund, General Revenue, for the fiscal year just ended. If at the end of any fiscal year the Revenue Shortfall Reserve Fund is funded at an amount equal to or exceeding thirteen percent of the state's General Revenue Fund budget for the fiscal year just ended, then there shall be no further deposit by the secretary under the provisions of this section of any surplus revenues as set forth in this subsection until that time the Revenue Shortfall Reserve Fund balance is less than thirteen percent of the total appropriations from the State Fund, General Revenue.

(c) Not earlier than November 1 of each calendar year, if the state's fiscal circumstances are such as to otherwise trigger the authority of the Governor to reduce appropriations under this section or section twenty‑one or twenty‑two of this article, then in that event the Governor may notify the presiding officers of both houses of the Legislature in writing of his or her intention to convene the Legislature pursuant to section nineteen, article VI of the Constitution of West Virginia for the purpose of requesting the introduction of a supplementary appropriation bill or to request a supplementary appropriation bill at the next preceding regular session of the Legislature to draw money from the surplus Revenue Shortfall Reserve Fund to meet any anticipated revenue shortfall. If the Legislature fails to enact a supplementary appropriation from the Revenue Shortfall Reserve Fund during any special legislative session called for the purposes set forth in this section or during the next preceding regular session of the Legislature, then the Governor may proceed with a reduction of appropriations pursuant to sections twenty‑one and twenty‑two of this article. Should any amount drawn from the Revenue Shortfall Reserve Fund pursuant to an appropriation made by the Legislature prove insufficient to address any anticipated shortfall, then the Governor may also proceed with a reduction of appropriations pursuant to sections twenty‑one and twenty‑two of this article.

(d) Upon the creation of the fund, the Legislature is authorized and may make an appropriation from the Revenue Shortfall Reserve Fund for revenue shortfalls, for emergency revenue needs caused by acts of God or natural disasters or for other fiscal needs as determined solely by the Legislature, including, but not limited to, special appropriation to fund essential government positions, services and expenses during a temporary interruption of government services created by the absence of a budget bill for the fiscal year.

(e) Prior to October 31 in any fiscal year in which revenues are inadequate to make timely payments of the state's obligations, the Governor may, by executive order, after first notifying the presiding officers of both houses of the Legislature in writing, borrow funds from the Revenue Shortfall Reserve Fund: Provided, That for the fiscal year 2014, pursuant to this subsection and subject to all other conditions, requirements and limitations set forth in this section, the Governor may borrow funds from the Revenue Shortfall Reserve Fund prior to the first day of April. The amount of funds borrowed under this subsection shall not exceed one and one‑half percent of the general revenue estimate for the fiscal year in which the funds are to be borrowed, or the amount the Governor determines is necessary to make timely payment of the state's obligations, whichever is less. Any funds borrowed pursuant to this subsection shall be repaid, without interest, and redeposited to the credit of the Revenue Shortfall Reserve Fund within ninety days of their withdrawal.

(f) The Revenue Shortfall Reserve Fund – Part B is continued within the State Treasury. The Revenue Shortfall Reserve Fund – Part B shall consist of moneys transferred from the West Virginia Tobacco Settlement Medical Trust Fund pursuant to the provisions of section two, article eleven‑a, chapter four of this code, repayments made of the loan from the West Virginia Tobacco Settlement Medical Trust Fund to the Physician's Mutual Insurance Company pursuant to the provisions of article twenty‑f, chapter thirty‑three of this code and all interest and other return earned on the moneys in the Revenue Shortfall Reserve Fund – Part B. Moneys in the Revenue Shortfall Reserve Fund – Part B may be expended solely for the purposes set forth in subsection (d) of this section, subject to the following conditions:

(1) No moneys in the Revenue Shortfall Reserve Fund – Part B nor any interest or other return earned thereon may be expended for any purpose unless all moneys in the Revenue Shortfall Reserve Fund described in subsection (b) of this section have first been expended, except that the interest or other return earned on moneys in the Revenue Shortfall Reserve Fund – Part B may be expended as provided in subdivision (2) of this subsection;

(2) Notwithstanding any other provision of this section to the contrary, the Legislature may appropriate any interest and other return earned thereon that may accrue on the moneys in the Revenue Shortfall Reserve Fund – Part B after June 30, 2025, for expenditure for the purposes set forth in section three, article eleven‑a, chapter four of this code; and

(3) Any appropriation made from Revenue Shortfall Reserve Fund – Part B shall be made only in instances of revenue shortfalls or fiscal emergencies of an extraordinary nature.

(g) Subject to the conditions upon expenditures from the Revenue Shortfall Reserve Fund – Part B prescribed in subsection (f) of this section, in appropriating moneys pursuant to the provisions of this section, the Legislature may in any fiscal year appropriate from the Revenue Shortfall Reserve Fund and the Revenue Shortfall Reserve Fund – Part B a total amount up to, but not exceeding, ten percent of the total appropriations from the State Fund, General Revenue, for the fiscal year just ended.

(h) (1) Of the moneys in the Revenue Shortfall Reserve Fund, $100 million, or such greater amount as may be certified as necessary by the Director of the Budget Office for the purposes of subsection (e) of this section, shall be made available to the West Virginia Board of Treasury Investments for management and investment of the moneys in accordance with the provisions of article six‑c, chapter twelve of this code. All other moneys in the Revenue Shortfall Reserve Fund shall be made available to the West Virginia Investment Management Board for management and investment of the moneys in accordance with the provisions of article six, chapter twelve of this code. Any balance of the Revenue Shortfall Reserve Fund, including accrued interest and other return earned thereon at the end of any fiscal year, does not revert to the General Fund but shall remain in the Revenue Shortfall Reserve Fund for the purposes set forth in this section.

(2) All of the moneys in the Revenue Shortfall Reserve Fund – Part B shall be made available to the West Virginia Investment Management Board for management and investment of the moneys in accordance with the provisions of article six, chapter twelve of this code. Any balance of the Revenue Shortfall Reserve Fund – Part B, including accrued interest and other return earned thereon at the end of any fiscal year, shall not revert to the General Fund but shall remain in the Revenue Shortfall Reserve Fund – Part B for the purposes set forth in this section.