CHAPTER 15. PUBLIC SAFETY.
ARTICLE 1. MILITARY FORCES OF THE STATE. §15-1-1. Definitions. When used in articles one, one-a, one-b, one-c, one-d, one-f and one-g of this chapter, unless a different meaning is plainly required by the context: (a) The term "military forces of the state" shall mean the organized militia, the state retired list, the honorary militia and the state guard, and all other components of the militia of the state which may hereafter be organized. (b) The term "organized militia" shall mean the West Virginia National Guard, including the army National Guard, the air National Guard and the inactive National Guard, and shall be deemed to include any unit, component, element, headquarters, staff or cadre thereof, as well as any member or members. (c) "Military personnel of the National Guard" shall mean all the members of the organized militia. (d) "Military" shall mean army or land, air or air force, navy or naval. (e) The term "service of the state" or "active service of the state" shall mean active military duty in other than a training status in or with a force of the organized militia or with the Adjutant General's department, upon orders of the Governor. (f) The term "state duty" shall mean duty in a training status or other duty in the interest of the state and the organized militia. (g) The term "service of the United States" or "active service of the United States" shall mean active military duty in the Armed Forces of the United States except active duty for training purposes. (h) The term "officer" or "commissioned officer" shall be deemed to include warrant officers.
§15-1-2. Commander in chief. The Governor shall be commander in chief of the military forces of the state, except those which are in the service of the United States.
§15-1-3. Regulations. The Governor shall issue regulations for the governance of the military forces of the state which shall have the force and effect of law. Such regulations shall conform to the provisions of this chapter, and as nearly as practicable to the laws and regulations of the United States governing the Armed Forces of the United States and relating to the organization, discipline and training of the organized militia. Regulations in force at the time of the passage of articles 1, 1A to 1G of this chapter, not inconsistent with its provisions, shall remain in force until superseded by new regulations issued hereunder.
§15-1-4. Active service -- Authority of Governor to require; state duty ordered by Adjutant General. a. The Governor may order all or any part of the organized militia and the state guard or any other person with their consent to active service of the state and all members of the organized militia and the state guard shall be liable for such service. b. The Governor may order the organized militia or any part thereof to serve outside the borders of the state and of the United States in order to perform military duty and to participate in parades, review, conferences, encampments, maneuvers, and other training, to participate in military competitions and to attend service schools. c. The Adjutant General may order the organized militia or any part thereof or any military personnel of the National Guard or any other person with his consent to state duty within or without the state and with or without compensation.
§15-1-5. Active service -- United States. When the organized militia, or any part thereof, is called for active service of the United States under the Constitution and laws of the United States, the Governor shall order the same to service, and if the number available is insufficient, the Governor may call for and accept as many volunteers as are required for service in the organized militia and state guard. During the absence of units and organizations of the organized militia in the service of the United States, their state designations shall not be given to new organizations, and all organizations and officers on return from such service shall be given their former standing and rank.
§15-1-6. Federal law and regulations. a. The duty of maintaining and governing the military forces of the state not in the service of the United States rests upon the state, subject to Constitutional authority. The purpose of such forces are twofold; national defense and service of the state. Their efficiency for both purposes necessarily depends upon systematic uniformity in organization, composition, arms, equipment, training and discipline with the Armed Forces of the United States and the military forces of other states. Therefore, the Governor shall cause the military forces of the state to conform to all federal laws and regulations applicable to the same, unless the same shall be incompatible with the state purpose of such forces. b. All matters relating to the organizations, discipline and government of the military forces of the state, not otherwise provided for in this chapter or in regulations, shall be decided by custom, usage and regulations of the Armed Forces of the United States.
ARTICLE 1A. ADJUTANT GENERAL. §15-1A-1. Department generally. The Adjutant General's department shall be a part of the executive branch of the government charged with the organization, administration, operation and training, supply and discipline of the military forces of the state. The Adjutant General shall be the executive head of the Adjutant General's department, and shall employ such clerical force and assistants as may be required for the fulfillment of his duties.
§15-1A-1a. Employee participation in group insurance programs; payroll deductions; custodian of funds. The Adjutant General is hereby authorized and empowered to negotiate for, secure and adopt for all employees of the Adjutant General's department, whether civilian or military and whether paid with state or federal funds, a policy or policies of group insurance written by a carrier or carriers chartered under the laws of this state or the laws of any other state and duly licensed to do business in this state and covering life; health; hospital care; surgical or medical diagnosis, care and treatment; drugs and medicines; remedial care; other medical supplies and services; or any other combination of these; and any other policy or policies under group insurance which in the discretion of the Adjutant General bear a reasonable relationship to the foregoing coverages. All premiums and other costs of participation for any such group insurance shall be paid solely by such employees. Whenever such employees shall indicate in writing that they have subscribed to any of the aforesaid insurance plans on a group basis, the Adjutant General is hereby authorized and empowered to approve periodic premium deductions from the salary payments due such employees as specified in a written assignment furnished the Adjutant General by each such employee subscribing to a group insurance plan, which deductions shall be made by the Auditor of the State of West Virginia. Upon proper requisition of the Adjutant General, the Auditor shall periodically issue a warrant, payable as specified in the requisition, for the total deductions from the salaries of employees participating in any such group insurance plan. To promote efficiency and economy in making deductions and issuing warrants as provided herein, the Auditor is authorized to promulgate rules and regulations specifying the form and the time and manner of presentation of requisitions issued pursuant to this section. When a participating employee shall retire from his employment, he may, if he so elects, and the insurance carrier or carriers agree, remain a member of the group plan by continuing to pay the premium for the coverage involved. The State Treasurer shall be custodian of the funds under the aforesaid group insurance plans, and disbursements from the funds to pay all premiums shall be made only upon warrants signed by the State Auditor and the state Treasurer.
§15-1A-2. Appointment; qualifications; bond. The Adjutant General shall be appointed by the Governor, by and with the advice and consent of the Senate, for a term of four years. He or she shall have the rank of major general, or such other rank as is recognized by federal authority. No person may be appointed Adjutant General unless he or she has had at least six years' commissioned service and attained field grade or higher rank in the organized militia of this or some other state or in the Armed Forces of the United States, or in all combined. The Governor shall require the Adjutant General to furnish bond as required by law, which bond shall be filed with the Auditor of the state.
§15-1A-3. Duties. (a) The Adjutant General shall be chief of staff to the Governor and commanding general of the organized militia. He shall direct the planning and employment of the military forces of the state in carrying out their state mission, establish unified command of state forces whenever jointly engaged, coordinate the military affairs with the civil defense of the state and organize and coordinate the activities of all civil agencies including local and state police in event of declaration of a limited emergency by the Governor pursuant to article one-d of this chapter. In time of emergency or disaster, the Adjutant General shall coordinate his activities with those of the Office of Emergency Services provided for by article five of this chapter. He shall be custodian of all military records of the state and shall keep the same indexed and available for ready reference. He shall keep an itemized account of all moneys received and dispensed from all sources and shall make an annual report to the Governor on the condition of the organized militia, receipts and expenditures and such other matters relating to the military forces of the state and the Adjutant General's department as he shall deem expedient. (b) The Adjutant General shall be responsible for the organization, administration, training and supply of the organized militia and shall cause to be procured, prepared and issued to the organizations of the organized militia all necessary books and blanks for reports, records, returns and general administration, and shall, at the expense of the state, cause the military laws, military code and rules and regulations in force to be printed, bound in proper form and distributed, one copy to each commissioned officer, and one each to all the circuit, intermediate and criminal court judges, sheriffs and justices of the peace in the state requiring them and shall procure and supply all necessary textbooks of drill and instruction. He shall keep in his office an accurate account of all state and United States property issued to the state. He shall keep on file in his office all official bonds required by this chapter, the reports and returns of troops and military forces of the state and all other writings and papers which are required to be transmitted to and preserved at the general headquarters of the organized militia. (c) The Adjutant General shall keep records of all service personnel from the State of West Virginia, commissioned or enlisted, in any of the wars of the United States and of individual claims of citizens of West Virginia for service rendered in such wars. He shall assist all persons residing in this state having claims against the United States for pension, bounty or back pay or such claims as have arisen out of, or by reason of, service in any of said wars. To this end he shall cooperate with the agents or attorneys of such claimants, furnish to claimants only all necessary certificates or certified abstracts from, or copies of, records or documents in his office and shall seek in all practicable ways to secure speedy and just action in all claims now pending or which may hereafter be filed: Provided, That any and all of the above services shall be rendered without charge to the claimant. He shall establish and maintain as a part of his office a bureau of records of the services of the West Virginia troops during such wars and shall keep arranged in proper and convenient form all records and papers pertaining thereto.
§15-1A-3a. Purchase of automobile liability insurance. The Adjutant General shall purchase, out of any funds appropriated by the Legislature for such purpose, an adequate public liability insurance covering all members of the organized militia while operating any land motor vehicle possessed or maintained by the organized militia: Provided, That no policy or contract of public liability insurance providing coverage for public liability shall be purchased as provided herein, unless it shall contain a provision or endorsement whereby the company issuing such policy waives, or agrees not to assert as a defense to any claim covered by the terms of such policy, the defense of governmental immunity. In any action against the Adjutant General, his officers, agents or employees, in which there is in effect liability insurance coverage in an amount equal to or greater than the amount sued for, the attorney for such Adjutant General, the attorney for such insurance carrier, or any other attorney who may appear on behalf of the Adjutant General, his agents, officers or employees shall not set up the defense of governmental immunity in any such action. Notwithstanding any other provision of this section, under no circumstances whatever shall the jury in any such action be advised directly or indirectly of the existence of any such insurance or of the amount thereof.
§15-1A-4. Assistant adjutants general and other authorized general officers. The Governor shall appoint an assistant Adjutant General for air and an assistant Adjutant General for army, each with the rank of brigadier general, or any other rank recognized by federal authority, who shall be the deputy commander of the air National Guard and the deputy commander of the army National Guard, respectively. The Adjutant General may appoint an assistant Adjutant General for the West Virginia National Guard, and any other general officer positions that are federally authorized by tables of distribution and allowance, modified tables of organization and equipment, and joint manning documents, each with the rank of brigadier general, or any other rank recognized by federal authority. The Adjutant General may also appoint an assistant Adjutant General with the rank of colonel or any other rank recognized by the federal authority, who shall be the executive officer and administrative assistant to assist the Adjutant General in the administration of the Adjutant General's department (or department of military affairs). The assistant Adjutant General serving as the executive officer and the administrative assistant may also be the deputy commander of the army or air National Guard. The assistant adjutants general shall be upon appointment, federally recognized officers of the air National Guard and the army National Guard, respectively.
ARTICLE 1B. NATIONAL GUARD. §15-1B-1. Organization of the National Guard. The National Guard shall be organized, equipped, disciplined, governed, administered and trained in accordance with the laws and regulations of the federal government for the purpose of organization and governance of the same, and for that purpose, the Governor is authorized to organize, reorganize or disband any unit, headquarters or staff therein, to increase or decrease the number of officers and noncommissioned officers and the strength of the National Guard or any unit thereof: Provided, however, That the Governor shall not be required to consent to the organization of any forces required or withdrawal of units organized in the state unless he deems the same in the best interest of the state. The Governor, in case of war, insurrection, invasion or imminent danger thereof, shall have the power to increase the National Guard and organize additional units thereof, though the same are not authorized or provided for by federal laws or regulations.
§15-1B-2. Army National Guard. The army National Guard shall comprise the army units including army aviation units, which are a part of the West Virginia National Guard and the personnel enlisted, appointed, or commissioned therein. All members of the army National Guard shall be federally recognized as such.
§15-1B-3. Air National Guard. The air National Guard shall comprise the air units of the West Virginia National Guard, except army aviation units, and the personnel enlisted, appointed or commissioned therein. All personnel of the air National Guard shall be federally recognized as such.
§15-1B-4. Oath, appointment and promotion of officers. a. Oath, appointment and promotion of officers shall be made in conformity with applicable rules and regulations of the federal government. b. Every officer duly commissioned shall, within ten days, after his commission is tendered to him or within ten days after he shall be personally notified that the same is held in readiness for him by any superior officer, take and subscribe to the oath of office prescribed by the Constitution of this state. In case of neglect or refusal to take and subscribe to such oath within the time mentioned, he shall be deemed to have resigned such office. Such oath shall be taken and subscribed before any officer authorized to take acknowledgments of deeds in this state, or some officer who has taken it himself and who is hereby authorized to administer the same.
§15-1B-5. Surplus officers; resignations. a. Commissioned officers who shall be rendered surplus by reduction, consolidation, or disbandment of organizations, or in any manner provided by law, may be transferred to the inactive National Guard in conformity with applicable rules and regulations prescribed by federal authority, or may be discharged. b. An officer may tender his resignation or request transfer from the National Guard at any time: Provided, That no such resignation shall be accepted unless the officer tendering the same shall furnish the Adjutant General from each property accounting officer concerned a certificate that he has delivered all books and other property of the state and federal government in his possession to the person authorized to receive the same, and that his accounts for money or public property are correct, and that he is not indebted to the state or federal military authorities.
§15-1B-6. Dismissal of officers. a. No officer of the National Guard shall be dismissed unless by reason of resignation, approval of findings of an efficiency or medical examining board, withdrawal of federal recognition, the sentence of a court-martial, or for cause as provided in subsection d of this section. b. The efficiency, moral character, incompetency, inability to properly perform his duty, and general fitness for retention in the National Guard of any officer may be investigated and determined by an efficiency examining board. c. The physical fitness for further service of any officer of the National Guard may be investigated by a medical examining board of officers. d. Efficiency and medical examining boards consisting of three or more officers shall be appointed by the Adjutant General upon recommendation of the commanding officer of the officer under investigation. All members of such boards shall be senior in grade to the officer under investigation, unless unavailable. Such boards shall be vested with the powers of courts of inquiry and courts-martial. Any officer ordered to appear before such a board shall be allowed to appear in person or by counsel, to cross-examine and to call the witnesses in his behalf. He shall at all stages of the proceedings be allowed full access to records pertinent to his case and be furnished copies of the same. If the officer shall fail to appear at the time and place set for the hearing by the board, the board shall proceed to consider the evidence presented to it and make such findings as shall be warranted. If the findings of the board are unfavorable to an officer and are approved by the Governor, the Governor shall dismiss the officer, transfer him to the state retired list or the honorary militia, or make such other order as may be appropriate. e. Any officer who permanently moves from the state or who is absent without leave from drill, training and other duty for two months, or whose federal recognition is withdrawn may be dismissed automatically. f. In any case in which the Adjutant General shall have ground to believe an officer unfit, incompetent, or incapable of performing his duties, he may be dismissed or transferred to the reserve list or honorary National Guard, if appropriate, without reference to an efficiency or medical examining board, unless the officer so dismissed or transferred shall, within thirty days after being notified thereof, serve upon the Adjutant General notice in writing demanding a hearing and examination before an appropriate board.
§15-1B-7. Appointment, promotion and reduction of noncommissioned officers. Noncommissioned officers shall be appointed and promoted and may be reduced in accordance with applicable federal laws and regulations: Provided, however, That in active service of the state, in cases requiring immediate example, a noncommissioned officer may be reduced to the ranks by his immediate commander, subject to appeal to, and review and approval by, the appointing officer.
§15-1B-8. Enlisted personnel -- Generally. (a) The qualification for enlistment and reenlistment, the period of enlistment, reenlistment and voluntary extension of enlistment, the period of service and the manner and form of transfer and discharge of enlisted personnel of the National Guard shall be as prescribed by applicable federal law and regulations: Provided, That the Governor may extend the period of any enlistment, reenlistment, voluntary extension of enlistment and the period of service of enlisted personnel of the National Guard for a period not exceeding the duration of an emergency declared by him pursuant to article one-c of this chapter. (b) Any person who has been discharged under other than honorable conditions from the National Guard of this or any other state or from any component of the Armed Forces of the United States and has not been restored to duty shall not be eligible for enlistment in the National Guard. (c) Every person enlisted for the National Guard shall take an oath of allegiance to the state and the United States and shall sign an enlistment paper, which shall be forwarded to the Adjutant General on such form as may be prescribed. (d) The oath of allegiance referred to in subsection (c) of this section may be taken and signed before any commissioned officer of the Armed Forces of the United States.
§15-1B-9. Enlisted personnel -- Discharge. a. Enlisted men may be honorably discharged, discharged, or discharged dishonorably; but in no case may an enlisted man be dishonorably discharged unless by sentence of a general court- martial, except as hereinafter provided. No enlisted man shall be honorably discharged from service unless he produces the certificate of his immediate commanding officer that he has turned over or satisfactorily accounted for all property issued to him b. Whenever any enlisted man of the National Guard shall have performed service therein for the term of his enlistment or reenlistment, and has turned in to the proper officer all state or military property for which he is responsible, his commanding officer shall grant him a full and honorable discharge, except in time of insurrection or invasion or other emergency declared by the Governor, when his enlistment shall be automatically extended for the period he shall be in the active service of the state, and until released therefrom by proper order. Discharge for physical disability shall be granted pursuant to applicable rules and regulations. The Governor may authorize for sufficient reason, and in his discretion, the discharge of enlisted men, with or without their consent, at any time, upon the recommendation of the commanding officer of the unit of organization to which they belong. An enlisted man who cannot, after due diligence, be found, or who shall remove his residence from the state, or to such distance from the armory of his organization, as to render it impracticable for him to perform properly military duties, or who shall be convicted of a felony, may be discharged by order of the Governor. c. A dishonorable discharge from the service in the National Guard shall operate as a complete expulsion from the guard, a forfeiture of all exemptions and privileges acquired through membership therein, and disqualification for any military office under the state. The names of all persons dishonorably discharged shall be published in orders by the Adjutant General at the time of such discharge, and as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county in which such dishonorably discharged person resides. No person so discharged shall be admitted to any armory or other meeting place of the National Guard or to the immediate vicinity of any encampment, drill or parade of troops. All commanding officers are hereby required to enforce these prohibitions.
§15-1B-10. Inactive National Guard. The inactive National Guard shall consist of the persons commissioned, appointed or enlisted therein at the effective date of this article, such officers and enlisted personnel as may hereafter be transferred thereto from the army National Guard and the air National Guard, and such persons as may be enlisted therein, under applicable regulations.
§15-1B-11. Uniforms, arms, equipment and supplies. The uniforms, arms, equipment and supplies necessary for performance of duties shall be those prescribed by applicable federal laws and regulations. Officers shall provide themselves with uniforms and equipment prescribed, and there shall be annually allowed, to aid them in procuring and maintaining the same in condition for service, the sum of $100 each. Such sum shall be paid during the last month of each fiscal year for such year. In the event of service for less than the full fiscal year one twelfth of such sum shall be allowed for each month of service during such year.
§15-1B-12. Care of and responsibility for military property and funds. a. Military property of the state and of the United States shall be issued, safeguarded, maintained, accounted for, inventoried, inspected, surveyed and disposed of as provided in applicable laws and regulations of the United States and regulations issued by the Adjutant General pursuant to this chapter. b. Every officer of the National Guard responsible for military property or funds of the state or of the United States shall give bond to the state in such amount as shall be determined by the Adjutant General, with good and sufficient security, to be approved by him conditioned upon the safekeeping, proper use and care and prompt surrender of such property or funds for which he may be properly responsible. c. When military property is lost, damaged, or destroyed through the negligence or fault of a member of the National Guard, the amount determined as the value of such property or the cost of repairing the same may be collected from any pay or allowance due or to become due him from the state. d. An action may be maintained in the name of the state in any court having jurisdiction thereof by the Attorney General upon the request of the Adjutant General to recover from a member or former member of the organized militia found responsible for military property lost, damaged or destroyed through his negligence or fault, the amount determined as the value of such property or the cost of repairing the same.
§15-1B-13. Assemblies, annual training and other duty. a. Members and units of the organized militia shall assemble for drill, or other equivalent training, instruction or duties during each year and shall participate in field training, encampments, maneuvers, schools, conferences, cruises or other similar duties each year as may be prescribed by the applicable laws and regulations of the United States and of this state. b. Members of the organized militia may be ordered by the Governor or under his authority to perform special duty, including but not limited to duty in a judicial proceeding, as a member of or in any other capacity with any military board, or as an investigating officer or as a medical examiner. c. Organization and unit commanders may in their discretion order drills of such portion of their command as may be deemed necessary, and may in their discretion order target practice for their command: Provided, That if any expense is to be incurred, written authority must be obtained from the Adjutant General.
§15-1B-14. Annual inspection and muster. An annual inspection and muster of each organization of the National Guard shall be made by an inspector at such time and place as the Adjutant General shall order and direct.
§15-1B-15. Repealed. Acts, 1982 Reg. Sess., Ch. 102.
§15-1B-16. Pay and allowances. (a) Pay and allowances for officers and enlisted personnel of the National Guard for drill, encampment or other duty for training prescribed or ordered by the federal government shall be such as are provided by the laws of the United States. (b) Officers and enlisted personnel of the National Guard in active service of the state shall receive the same pay and allowances, in accordance with their rank and service, as are prescribed for the Armed Forces of the United States: Provided, That no member of the National Guard shall receive base pay of less than $100 per day while he or she is in active service of the state. (c) Notwithstanding any of the provisions of this article, members of the National Guard may, with their consent, perform without pay, or without pay and allowances, any duties prescribed by section thirteen of this article pursuant to competent orders therefor: Provided, That necessary expenses may be furnished such personnel within the discretion of the Adjutant General.
§15-1B-17. Command pay; inspections; compensation for clerical services and care of property. (a) There may be paid to each commander of a brigade, regiment, air wing, army group or other corresponding type organization $100 per month and to each commander of a battalion, army squadron, air group or other equivalent type organization $50 per month and to each commander of a company, air squadron or other equivalent type organization $25 per month, payable quarterly, to be known as command pay. (b) There shall be allowed to each headquarters of a brigade, regiment, air wing, army group or equivalent type organization the sum of $100 per month and each headquarters of a battalion, army squadron, air group or corresponding type organization the sum of $50 per month for clerical services; and to each company air squadron or corresponding type unit the sum of $25 per month for like services, payable quarterly. The commandant of the West Virginia military academy shall be allowed the sum of $25 a month, payable quarterly, for like services. (c) At the discretion of the Adjutant General, there may be paid to the enlisted man or woman who is directly responsible for the care and custody of the federal and state property of each organization or unit the sum of $10 per month, payable quarterly, upon the certificate of his or her commanding officer that he or she has faithfully and satisfactorily performed the duties assigned him or her and accounted for all property entrusted to his or her care. (d) The Adjutant General shall determine the amount of entitlement to command pay and clerical pay, not to exceed the amounts set forth in subsections (a) and (b) of this section, using organizational charts showing chain of command and authorized strengths and defining other equivalent type organizations. (e) Notwithstanding any other provision of this code, there shall be paid to the command administrative officer of the headquarters of the West Virginia army National Guard and to the executive staff support officer of the headquarters of the West Virginia air National Guard, or to the officer occupying a similar position, regardless of title, $100 per month, payable quarterly, to be known as an administrative allowance. (f) The state command sergeant of the West Virginia army National Guard and the command chief master sergeant of the West Virginia air National Guard shall receive a monthly administrative allowance of $100 per month. The command sergeant major or command chief master sergeant of a unit authorized under the command of a commander in the rank of colonel shall receive a monthly administrative allowance of $75 per month. The command sergeant major or command chief master sergeant of a unit authorized under the command of a commander in the rank of lieutenant colonel shall receive a monthly administrative allowance of $45 per month.
§15-1B-18. Injury or death while in service of state. A member of the organized militia who, (1) while in active service of the state, shall receive an injury, or incur or contract any disability or disease, by reason of such duty, or (2) while performing any lawfully ordered state duty, shall without fault or neglect on his part be injured or disabled, and shall be incapacitated from pursuing his usual business or occupation, shall, during the period of such incapacity, receive the pay provided by this article and actual necessary expenses for care and medical attendance, including burial and funeral expenses in case of death resulting therefrom. All claims arising under this section shall be inquired into by a board of three officers, at least one being a medical officer, to be appointed, upon the application of the member claiming to be so incapacitated, or his personal representatives, by the commanding officer of the organization or unit to which such member is attached or assigned. Such board shall have the same power to take evidence, administer oaths, issue subpoenas and compel witnesses to attend and testify and produce books and papers, and punish their failure to do so, as is possessed by a general court- martial. The findings of the board shall be subject to the approval of the officer convening it, and also to the approval of the Governor, either of whom may return the proceedings of the board for revision and for the taking of further testimony. The amount found due such member by such board, to the extent that its findings are approved by the reviewing officers thereof, shall be paid by the treasurer of the state out of any moneys in the military fund unexpended. The widow and children of every officer or soldier killed, while in the service of the state or performing lawfully ordered state duty, shall be suitably provided for by the Legislature.
§15-1B-19. Military fund. The sums of money which may be appropriated by the Legislature for carrying into effect any provisions of this article, and the penalties and collections required thereby to be paid to the treasurer of the state, shall constitute the military fund of the state for the uses and purposes set forth in this article. The State Treasurer shall, at the end of each quarter, render to the Adjutant General a statement of the condition of the military fund, showing the amount on hand at the beginning of the quarter, the amount received and expended during the quarter, and the balance on hand at the end of the quarter. The Adjutant General shall furnish the Governor a copy of this quarterly report.
§15-1B-20. Military expenses. All payments made under the provisions of this article, except pay and allowances for active service of the state, shall be paid out of the military fund. All pay and allowances and other expenses incurred in active service of the state shall be paid out of any moneys in the treasury not otherwise appropriated. The military fund shall be disbursed on warrant of the Adjutant General, properly drawn and in such manner as the Governor may order, or as may be required by law, but no warrant for funds signed by him shall be honored by the Auditor until such Adjutant General shall have executed and filed such bond as may be required by the Governor. Payments shall be made on proper vouchers, which vouchers shall show the authority under which the expenditures are made, contain an itemized statement of the transactions, and be filed for record in the office of the Adjutant General. All claims for services rendered or material furnished shall be approved by the officer ordering the work or material, and shall be over his certificate to the effect that the amount is just and reasonable, and that it has not been previously paid. No expenditures shall be made by any officer until an estimate of the amount and a statement of the necessity therefor shall have been laid before the Adjutant General and his approval received.
§15-1B-21. Tuition and fees for guard members at institutions of higher education. (a) Any member of the Army National Guard or Air National Guard who is enrolled in an educational program which leads to a certificate, undergraduate degree, master's degree, doctor of medicine, or doctor of osteopathic medicine, and is attending any accredited community and technical college, college, university, or business, career-technical, vocational, trade or aviation school, located in West Virginia, may be entitled to payment of tuition and fees for that program during the period of his or her service in the National Guard. (1) The Adjutant General may prescribe criteria of eligibility for payment of tuition and fees. The payment is contingent upon appropriations being made by the Legislature for the express purpose of this section. (2) A member may receive payment for only one certificate, undergraduate degree and master's degree pursuant to this section. (3) Not more than two members a year may be selected by the Adjutant General to receive payment for either a doctor of medicine or doctor of osteopathic medicine degree program. Any candidate selected for this program must remain a member of the Army National Guard or the Air National Guard and practice medicine in the State of West Virginia for a minimum of ten years after receiving a doctor of medicine or doctor of osteopathic medicine degree, or be subject to recoupment for all monies paid pursuant to this subdivision. (b) The amount of the payment for a member attending a state-supported school is determined by the Adjutant General and may not exceed the actual cost of tuition and fees at the school. The amount of the payment for a member attending a private school is determined by the Adjutant General and may not exceed the highest amount payable at any state-supported school. (c) Any member of the Army National Guard or Air National Guard who is receiving payments under a federally funded continuing education system and is eligible to receive tuition and fee payments pursuant to this section may be entitled to payment of tuition and fees under this section. The sum of payments received under this section and a federally funded continuing education system may not exceed the actual amount of tuition and fees at the school and in any event may not exceed the highest amount payable at any state-supported school. (d) For any member of the West Virginia Army National Guard or West Virginia Air National Guard who is participating in the PROMISE Scholarship program provided in article seven, chapter eighteen-c of this code, the Adjutant General may pay directly to the member an amount equal to the amount of tuition and fees which otherwise would have been paid to the school. (e) A member of the West Virginia Army National Guard or West Virginia Air National Guard who is receiving payments for tuition and fees under this section and is discharged from the military service due to wounds or injuries received in the line of duty may continue to receive payments for tuition and fees under this section as if he or she were still a member. (f) The Adjutant General shall administer the tuition and fee payments authorized under this section and shall establish policies to implement the provisions of this section.
§15-1B-22. Military facilities; security guards; qualifications; duties; powers. (a) Notwithstanding any provision of this code to the contrary, bona fide members of the West Virginia National Guard assigned by the Adjutant General to function as security guards to safeguard military property of the state or of the United States who have successfully completed a training program in law enforcement approved by the Adjutant General and the superintendent of the West Virginia Department of Public Safety shall be deemed to have met all the requirements for certification as a law-enforcement officer set forth in section five, article twenty-nine, chapter thirty of this code. Those members of the West Virginia National Guard who are so designated as security guards and who have successfully completed such training program are hereby empowered: (1) To make arrests on military installations of the state or of the United States for any violations of the law of this state or of the United States occurring on any such military installation; (2) To patrol areas immediately adjacent to military installations to provide for its security and to safeguard military personnel, equipment and other government assets located on said installation: Provided, That nothing in this subparagraph shall confer upon security guards the right to enter upon private property; (3) To cooperate with state and local authorities in detecting and apprehending any person or persons engaged in or suspected of the commission of any crime, misdemeanor or offense against the law of this state or of the United States, or of any ordinance of any municipality of this state, if such is committed or attempted to be committed on or adjacent to a military installation in this state; and (4) To respond to areas adjacent to military facilities and installations at the request of state and local authorities to provide support and mutual aid in the event of accidents, emergency or otherwise. (b) Any security guard, duly appointed by the Adjutant General, knowing or having reasonable cause to believe that a person has violated the law while situate on a military installation, may make complaint in writing before any court or officer having jurisdiction and procure a warrant for such person. (c) For the purposes of this section, the term "military installation" shall mean a facility under the command of the Adjutant General. (d) Notwithstanding any provision of this code to the contrary, bona fide members of the West Virginia National Guard assigned by the Adjutant General to function as firefighters to safeguard military property of the state or of the United States are hereby empowered to respond to areas adjacent to military facilities and installations at the request of state and local authorities to provide support and mutual aid in the event of accidents, emergency or otherwise.
§15-1B-23. American flag for burial of deceased members of the National Guard; presentation of flag to parent or spouse. (a) The Adjutant General shall pay the necessary expenses for the presentation of a flag of the United States with care to the person designated to direct disposition of the remains of a deceased person who served a federally recognized unit of National Guard of this state, upon request of such designated person, if the deceased member of the National Guard has not been dishonorably discharged from service as provided for in section nine of this article, and if such deceased person is not otherwise eligible to receive such flag under any other provision of the laws of this state or federal law. Such flag shall be provided in order that the casket of the deceased person may be draped in a flag of the United States. (b) After the burial of the deceased member, the flag so furnished pursuant to subsection (a) of this section shall be given to the parent or parents or to the spouse of the deceased person. If no claim is made by a parent or spouse for the flag furnished under subsection (a), the flag may be given, upon request, to a close friend or associate of the deceased member. (c) For the purposes of this section, the term "parent" includes a natural parent, a step-parent, a parent by adoption or a person who for a period of not less than one year before the death of the decedent stood in loco parentis to him and preference under this clause shall be given to the persons who exercised a parental relationship at the time of, or most nearly before, the death of the decedent.
§15-1B-24. Mountaineer Challenge Academy. The Mountaineer Challenge Academy, operated by the Adjutant General at Camp Dawson, is hereby acknowledged to be a program of great value in meeting the educational needs of at-risk youth throughout the state. Further, the Mountaineer Challenge Academy is hereby designated as a special alternative education program as is further provided pursuant to section six, article two, chapter eighteen of this code. It is, therefore, the intent of the Legislature that the Mountaineer Challenge Academy should enjoy the full cooperation of the executive agencies of state government in carrying out its program. To this end, the state Board of Education shall, notwithstanding any other provision in this code to the contrary: (1) Include the Mountaineer Challenge Academy in the child nutrition program; (2) Provide the names and mailing addresses of all high school dropouts in the state to the director of the Mountaineer Challenge Academy annually; and (3) Provide for Mountaineer Challenge Academy graduates to participate in the adult basic education program. Further cooperation with the Mountaineer Challenge Academy is encouraged by the Legislature for the purpose of assisting the Mountaineer Challenge Academy to achieve its mission and help prepare young people for productive adulthood.
§15-1B-25. Commissioning bonus. Upon graduation from the officer candidate school conducted at the regional training institute, Camp Dawson, each member of the West Virginia army National Guard who accepts a commission shall be entitled to a commissioning bonus of $2,000.
§15-1B-26. Firefighters and security guards to be members of the National Guard. Only firefighters and security guards who are members of the West Virginia National Guard may be employed by the Adjutant General as firefighters and security guards: Provided, That any person employed as a firefighter on the effective date of this section who is not a member of the West Virginia air National Guard may continue to be employed as a firefighter: Provided, however, That no person who is not employed on the effective date of this section as a firefighter and who is not a member of the West Virginia air National Guard may be employed as a firefighter for the West Virginia air National Guard.
§15-1B-27. Asset Forfeiture and Asset Sharing. (a) The West Virginia National Guard is authorized to participate in asset forfeiture and seizure programs established by the United States government relating to drug interdiction and counter-drug activities, pursuant to the provisions of 32 U. S. C. §112. (b) (1) There is hereby created in the State Treasury a special revenue account, designated the West Virginia National Guard Counterdrug Forfeiture Fund which shall be administered by the Adjutant General. (2) Any balance in the account at the end of the fiscal year shall not revert to the general revenue fund but shall remain in the account, and be expended as provided in this section. The fund shall consist of property seized or forfeited to the United States under any federal asset, forfeiture or sharing program and shared with the West Virginia National Guard Counter Drug Program. (3) Expenditures from the fund shall be for the purposes set forth in this section and are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for fiscal year ending June 30, 2013, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. Expenditures from the fund shall be for facilities, equipment, administrative expenses and to defray any other necessary expenses incidental to and associated with the program. (c) The Adjutant General shall propose rules pursuant to article three, chapter twenty-nine-a of this code for the operation of any asset forfeiture and asset sharing program by the West Virginia National Guard Counterdrug Support Program and for the operation of the special revenue fund account established under this section.
ARTICLE 1C. STATE RETIRED LIST AND HONORARY MILITIA. §15-1C-1. State retired list. a. Any member of the National Guard who has reached the age of sixty-four years, or shall be retired from service under applicable laws and regulations of the United States, shall be transferred to the state retired list by order of the Governor. b. Any officer who has served for at least twenty years in the National Guard, or in the National Guard and the Armed Forces of the United States combined, upon his request, may be transferred to the state retired list in a grade one grade higher than the highest grade previously held by him during such service. In computing such twenty-year period, service as an enlisted man shall be counted. c. Any enlisted man who has served at least twenty years in the National Guard, or in the National Guard and the Armed Forces of the United States combined, upon his request may be transferred to the state retired list by the Governor in a grade equivalent to the highest grade held by him during such service. If said grade was of officer grade, the provisions of subsection b of this section will govern. d. Any officer of the National Guard may be transferred to the state retired list on his own request, approved by the Adjutant General. e. Any officer of the National Guard who has been rendered surplus by reduction, disbandment, or reorganization of a unit or for any other reason, unless transferred to the inactive National Guard, may be relieved from duty and command and may be transferred to the state retired or reserve list. f. Any person who has served as an officer in the National Guard or in the Armed Forces of the United States and has been honorably discharged therefrom, may be commissioned and placed on the state retired list in the highest grade previously held by him after complying with such conditions as may be prescribed by regulations issued pursuant to this chapter.
§15-1C-2. Duty with the National Guard. Upon recommendation of the Adjutant General with the consent of the person concerned, the Governor may order any person on the state retired list to state duty in or with the National Guard for a period not to exceed three months, in which case such person shall rank in his grade from the date of such order.
§15-1C-3. Seniority, resignation, discharge, etc. Time spent on the state retired list shall not be credited in the computation of seniority, pay, length of service, or any of the privileges and exemptions pertaining thereto, except that the time during which he served on active duty by order of the Governor shall be so credited. The provisions of this article relative to resignation, court-martial, dismissal or discharge, including dismissal or discharge on the finding of an efficiency or medical examining board shall be applicable to persons on the state retired list.
§15-1C-4. Honorary militia. The Governor may appoint and commission any person, with such rank as he may fix, to serve in the honorary militia and may appoint and commission an honorary staff of such number and rank as he may deem advisable to serve during his term of office. Members of the honorary militia shall not be held to be a part of the organized militia.
ARTICLE 1D. ACTIVE STATE SERVICE. §15-1D-1. Calling out National Guard by Governor. In event of war, insurrection, rebellion, invasion, tumult, riot, mob or body of men acting together by force with intent to commit a felony or to offer violence to persons or property, or by force and violence to break and resist the laws of this state or the United States, or in case of the imminent danger of the occurrence of any of said events, or in event of public disaster or emergency, the Governor shall have power to order the West Virginia National Guard, or any part thereof, into the active service of the state, and to cause them to perform such duty as he shall deem proper.
§15-1D-2. Limited emergency. In time of public disaster or emergency, the Governor may declare a limited emergency in the affected area and designate the commander of the National Guard units called to duty to coordinate and direct the activities of all persons, organizations and agencies participating in the evacuation, safeguarding, relief and rehabilitation of the affected area, delegating to such commander such authority as he deems necessary and expedient in the circumstances. The commander so designated by the Governor shall act for and on behalf of the Governor and take all actions in his name. Nothing contained in this section shall be construed to limit or deny the authority of the Governor to declare martial law.
§15-1D-3. Use of military force to disperse riots, etc. Before using any military force in the dispersion of any riot, rout, tumult, mob or unlawful assembly, or combination mentioned in this article, it shall be the duty of the civil authorities present, or if none be present, then of the officer in command of the troops, or some person by him deputed, to command the persons composing such riotous, tumultuous or unlawful assembly or mob to disperse and retire peaceably to their respective abodes and business; but in no case shall it be necessary to use any set or particular form of words in ordering the dispersion of any riotous, tumultuous or unlawful assembly; nor shall any such command be necessary where the officer or person, in order to give it, would necessarily be put in imminent danger of loss of life or great bodily harm, or where such unlawful assembly or mob is engaged in the commission or perpetration of any forcible or atrocious felony, or in assaulting or attacking any civil officer or person lawfully called to aid in the preservation of the peace, or is otherwise engaged in actual violence to persons and property.
§15-1D-4. Failure to disperse. Any person or persons composing or taking part in any riot, rout, tumult, mob or lawless combination or assembly mentioned in this article, who, after being duly commanded to disperse, as provided in the preceding section, willfully and intentionally fails to do so as soon as practicable, shall be guilty of a felony, and, on conviction thereof, shall be imprisoned in the penitentiary for not less than one nor more than two years.
§15-1D-5. Power of officers to arrest, disperse or quell persons rioting, etc. After any person or persons, composing or taking part, or about to take part, in any riot, rout, mob, tumult, or unlawful combination or assembly mentioned in this article shall have been duly commanded to disperse, or when the circumstances are such that no such command is requisite under the provisions of this article, and the civil authority to whom such military force is ordered to report, or if there be no civil authority present, then such military officer acting within the limits provided in his orders shall take such steps for the arrest, dispersion, or quelling of the persons composing or taking part in any such mob, riot, tumult, outbreak, or unlawful combination or assembly mentioned in this article, as may be required, and if, in doing so, any person is killed, wounded, or otherwise injured, or any property injured or destroyed, by the civil authority or officer or member of the National Guard, or other persons lawfully aiding them, such officer, member or person shall be held guiltless.
§15-1D-6. Assaults on National Guard or persons aiding it. It shall be unlawful for any person to assault, fire upon, or throw any missile at, against or upon any member or body of the National Guard, or civil officer, or other person lawfully aiding them, when going to, returning from, or assembled for performing any duty under the provisions of this article; and any person so offending shall be guilty of a felony, and, on conviction, shall be imprisoned in the penitentiary for not less than two nor more than five years.
§15-1D-7. Repelling assault. If any portion of the National Guard, or any person lawfully aiding them in the performance of any duty, under the provisions of this article, is assaulted, attacked or in imminent danger thereof, the commanding officer of such National Guard need not await any orders from any civil authority but may at once proceed to quell such attack and disperse the attacking parties, and take all other needful steps for the safety of his command.
§15-1D-8. Duty to retire from unlawful assembly. Whenever any shot is fired or missile thrown at, against or upon any body of the National Guard, or upon any officer or member thereof, assembling or assembled for the performance of any duty under the provisions of this article, it shall forthwith be the duty of every person in the assembly from which such shot is fired, or missile thrown, to immediately disperse and retire therefrom, without awaiting any order to do so; and any person knowing or having reason to believe that a shot has been so fired, or missile thrown from any assembly of which such person forms a part or with which he is present, and failing without lawful excuse to retire immediately from such assembly, shall be guilty of a misdemeanor; and any person so remaining in such assembly, after being duly commanded to disperse, shall be guilty of a felony and, on conviction shall be imprisoned in the penitentiary not less than one nor more than two years.
§15-1D-9. National Guard to have right-of-way; exceptions. Any portion of the National Guard parading or performing any duty according to law shall have the right-of-way in any street or highway through which they may pass: Provided, That the carriage of United States mails and operations of fire engines and fire departments shall not be interfered with thereby.
§15-1D-10. Regulation of occupancy of streets for passage of National Guard. Whenever any portion of the National Guard is or has been called out for the performance of any duty under the provisions of this article, it shall be lawful for the commanding officer of such National Guard, if it be deemed advisable in the circumstances of the emergency, to prohibit all persons from occupying or passing on any street, road, or place, or where the National Guard may be for the time being, and otherwise to regulate the passage and occupancy of such streets and places. Any person, after being duly informed of such regulations, who willfully and intentionally without any lawful excuse, attempts to go or remain on such street, road, or place, and fails to depart after being warned to do so, shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not less than $10 nor more than $100, or imprisoned in the county jail not less than ten nor more than sixty days, or both; and in such case the officer in command of the National Guard may forthwith arrest persons so offending and turn them over to some civil authority.
§15-1D-11. Transportation of officers and men. The several railroads and other transportation companies in this state shall furnish transportation for all officers and enlisted men in the National Guard, together with the stores, ammunition and equipment, when traveling on duty under orders from competent authority, on request of the officer desiring transportation, which request shall state the number of persons to be carried, and their destination, and for such transportation said companies shall be entitled to receive compensation from the state at the rate specified.
§15-1D-12. Trespassing upon armories, etc.; interrupting, interfering with, etc., National Guard; regulation of certain sales, gambling, etc., within certain limits of armories, etc. a. Any person who shall, after due warning, trespass upon any armory, camp, range, or other facility of the National Guard or other place where any force of the National Guard is performing military duty, or who shall in any manner interrupt or molest the discharge of military duties by any member or force of the National Guard, or who shall interrupt or prevent the passage of troops of the National Guard, or who shall insult, by jeer or otherwise, any member of the National Guard, or refuse to obey any lawful order of the military commander, may be placed in arrest by any officer of the force performing such military duty at the place where the offense is committed and delivered to the proper civil authorities. b. The commanding officer of any force of the National Guard performing military duty in or at any armory, arsenal, camp, range, base or other facility of the National Guard or other place or area where such force is performing duty in the service of the state may prohibit persons from hawking, peddling, vending, selling, or auctioning goods, wares, merchandise, food products or beverages, and may prohibit all gambling, or the sale or use of spirituous beverages, or the establishment or maintenance of a disorderly place, within the limits of such armory, arsenal, camp, range, base or other facility of the National Guard or other place or area where such force is performing duty, or within such limits not exceeding one mile therefrom as he may prescribe.
§15-1D-13. Regulations while state military forces on duty. When any portion of the military forces of this state shall be in active service of the state, pursuant to this article, the code of military justice and the general regulations for the government of the Armed Forces of the United States shall be considered in force and regarded as a part of this article until such forces shall be duly relieved from such duty. No punishment under such rules and articles which shall extend to the taking of life shall, in any case, be inflicted except in time of actual war, invasion, or insurrection, declared by proclamation of the Governor to exist and then only after the approval of the Governor of the sentence inflicting such punishment.
§15-1D-14. When martial law may be declared. In the event of invasion, insurrection, rebellion or riot, flood or other public disaster or emergency, the Governor, in his discretion, may by proclamation containing such powers as would meet the exigencies of the situation, declare a state of martial law or rule in the towns, cities, districts or counties where such disturbances or emergencies exist.
ARTICLE 1E. CODE OF MILITARY JUSTICE.
PART I. GENERAL PROVISIONS. §15-1E-1. Definitions; gender neutrality. (a) In this article, unless the context otherwise requires: (1) The term "accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused. (2) The term "cadet," "candidate," or "midshipman" means a person who is enrolled in or attending a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the state military forces. (3) The term "classified information" means - any information or material that has been determined by an official of the United States or any state pursuant to law, an Executive order, or regulation to require protection against unauthorized disclosure for reasons of national or state security, and any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 (42 U.S.C. §2014(y)). (4) The term "code" means this article. (5) The term "commanding officer" includes only commissioned officers of the state military forces and shall include officers in charge only when administering nonjudicial punishment under Section fifteen of this article. The term "commander" has the same meaning as "commanding officer" unless the context otherwise requires. (6) The term "convening authority" includes, in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority. (7) The term "day" means calendar day and is not synonymous with the term "unit training assembly." Any punishment authorized by this section which is measured in terms of days shall, when served in a status other than annual field training, be construed to mean succeeding duty days. (8) The term "duty status other than state active duty" means any other type of duty not in federal service and not full-time duty in the active service of the state; under an order issued by authority of law and includes travel to and from such duty. (9) The term "enlisted member" means a person in an enlisted grade. (10) The term "judge advocate" means a commissioned officer of the organized state military forces who is an attorney licensed to practice in this state or is a member in good standing of the bar of the highest court of another state, who is admitted pro hac vice to practice in this state, and is any of the following: Certified or designated as a judge advocate in the Judge Advocate General's Corps of the Army, Air Force, Navy, or the Marine Corps or designated as a law specialist as an officer of the Coast Guard, or a reserve component of one of these; or certified as an nonfederally recognized judge advocate, under regulations promulgated pursuant to this provision, by the senior judge advocate of the commander of the force in the state military forces of which the accused is a member, as competent to perform such military justice duties required by this article. If there is no such judge advocate available, then such certification may be made by such senior judge advocate of the commander of another force in the state military forces, as the convening authority directs. (11) The term "may" is used in a permissive sense. The phrase "no person may . . ." means that no person is required, authorized, or permitted to do the act prescribed. (12) The term "military court" means a court-martial or a court of inquiry. (13) The term "military judge" means an official of a general or special court-martial detailed in accordance with section twenty-six of this article. (14) The term "military offenses" means those offenses prescribed under sections seventy-seven (Principals), seventy-eight (Accessory after the fact), eighty (Attempts), eighty-one (Conspiracy), eighty-two (Solicitation),eighty-three (Fraudulent enlistment, appointment, or separation), eighty-four (Unlawful enlistment, appointment, or separation), eighty-five (Desertion), eighty-six (Absence without leave), eighty-seven (Missing movement), eighty-eight (Contempt toward officials), eighty-nine (Disrespect towards superior commissioned officer), ninety (Assaulting or willfully disobeying superior commissioned officer), ninety-one (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), ninety-two (Failure to obey order or regulation), ninety-three (Cruelty and maltreatment), ninety-four (Mutiny or sedition), ninety-five (Resistance, flight, breach of arrest, and escape), ninety-six (Releasing prisoner without proper authority), ninety-seven (Unlawful detention), ninety-eight (Noncompliance with procedural rules), ninety-nine (Misbehavior before the enemy), one hundred (Subordinate compelling surrender), one hundred one (Improper use of countersign), one hundred two (Forcing a safeguard), one hundred three (Captured or abandoned property), one hundred four (Aiding the enemy), one hundred five (Misconduct as prisoner), one hundred seven (False official statements), one hundred eight (Military property - Loss, damage, destruction, or wrongful disposition), one hundred nine (Property other than military property - waste, spoilage, or destruction), one hundred ten (Improper hazarding of vessel), one hundred twelve (Drunk on duty), one hundred twelve-a. (Wrongful use, possession, etc, of controlled substances), one hundred thirteen (Misbehavior of sentinel), one hundred fourteen (Dueling), one hundred fifteen (Malingering), one hundred sixteen (Riot or breach of peace), one hundred seventeen (Provoking speeches or gestures), one hundred thirty-two (Frauds against the government), one hundred thirty-three (Conduct unbecoming an officer and a gentleman), and one hundred thirty-four (General) of this article. (15) The term "national security" means the national defense and foreign relations of the United States. (16) The term "officer" means a commissioned or warrant officer. (17) The term "officer in charge" means a member of the Naval Militia, the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority. (18) The term "record," when used in connection with the proceedings of a court-martial, means - an official written transcript, written summary, or other writing relating to the proceedings; or an official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced. (19) "Shall" is used in an imperative sense. (20) "State" means one of the several states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the U.S. Virgin Islands. (21) "State active duty" means full-time duty in the state military forces under an order of the Governor or otherwise issued by authority of law, and paid by state funds, and includes travel to and from such duty. (22) "Senior force judge advocate" means the senior judge advocate of the commander of the same force of the state military forces as the accused and who is that commander's chief legal advisor. To be eligible to serve as a senior force judge advocate, a judge advocate must be a member of the bar of the Supreme Court of Appeals of West Virginia for at least five years, and shall have completed all educational requirements for active military service as a field grade judge advocate general corps officer. (23) "State military forces" means the National Guard of the state, as defined in title 32, United States Code, to include the West Virginia Army National Guard, the West Virginia Air National Guard and the inactive National Guard, and shall be deemed to include any unit, component, element, headquarters, staff or cadre thereof, as well as any member or members, when not in a status subjecting them to exclusive jurisdiction under chapter 47 of title 10, United States Code. (24) The term "superior commissioned officer" means a commissioned officer superior in rank or command. (25) "Senior force commander" means the commander of the same force of the state military forces as the accused. (26) "Unit Training Assembly" means an assembly for drill or instruction which may consist of a single ordered formation of a company, battery, squadron, or detachment, or, when authorized by the commander, a series of ordered formations of those organizations. (b) The use of the masculine gender throughout this shall also include the feminine gender.
§15-1E-2. Persons subject to this article; jurisdiction. (a) This article applies to all members of the state military forces at all times. (b) Subject matter jurisdiction is established if a nexus exists between an offense, either military or nonmilitary, and the state military force. Courts-martial have primary jurisdiction of military offenses as defined in this article. A proper civilian court has primary jurisdiction of a nonmilitary offense when an act or omission violates both this article and local criminal law, foreign or domestic. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense.
§15-1E-3. Jurisdiction to try certain personnel. (a) Each person discharged from the state military forces who is later charged with having fraudulently obtained a discharge is, subject to section forty-three of this article, subject to trial by court-martial on that charge and is, after apprehension, subject to this article while in custody under the direction of the state military forces for that trial. Upon conviction of that charge that person is subject to trial by court-martial for all offenses under this article committed before the fraudulent discharge. (b) No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of this article by virtue of a separation from any later period of service.
§15-1E-4. Reserved.
§15-1E-5. Territorial applicability of the article. (a) This article has applicability at all times and in all places, provided that either the person subject to the article is in a duty status or, if not in a duty status, that there is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces; however, this grant of military jurisdiction shall neither preclude nor limit civilian jurisdiction over an offense, which is limited only by the prohibition of double jeopardy. (b) Courts-martial and courts of inquiry may be convened and held in units of the state military forces while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this article as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.
§15-1E-6. Judge Advocates. (a) The senior force judge advocates in each of the state's military forces or that judge advocate's delegates shall make frequent inspections in the field in supervision of the administration of military justice in that force. (b) Convening authorities shall at all times communicate directly with their judge advocates in matters relating to the administration of military justice. The judge advocate of any command is entitled to communicate directly with the judge advocate of a superior or subordinate command, or with the State Judge Advocate. (c) No person who has acted as member, military judge, trial counsel, defense counsel, or investigating officer, or who has been a witness, in any case may later act as a judge advocate to any reviewing authority upon the same case.
PART II. APPREHENSION AND RESTRAINT. §15-1E-7. Apprehension. (a) Apprehension is the taking of a person into custody. (b) Any person authorized by this article or by chapter 47 of title 10, United States Code, or by regulations issued under either, to apprehend persons subject to this article, any marshal of a court-martial appointed pursuant to the provisions of this article, and any peace officer or civil officer having authority to apprehend offenders under the laws of the United States or of a state, may do so upon probable cause that an offense has been committed and that the person apprehended committed it. (c) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this article and to apprehend persons subject to this article who take part therein. (d) If an offender is apprehended outside the state, the offender's return to the area must be in accordance with normal extradition procedures or by reciprocal agreement. (e) No person authorized by this section to apprehend persons subject to this article or the place where such offender is confined, restrained, held, or otherwise housed may require payment of any fee or charge for so receiving, apprehending, confining, restraining, holding, or otherwise housing a person except as otherwise provided by law.
§15-1E-8. Reserved.
§15-1E-9. Imposition of restraint. (a) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing him or her to remain within certain specified limits. Confinement is the physical restraint of a person. (b) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this article. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer's command or subject to the commanding officer's authority into arrest or confinement. (c) A commissioned officer, a warrant officer, or a civilian subject to this article or to trial there under may be ordered into arrest or confinement only by a commanding officer to whose authority the person is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated. (d) No person may be ordered into arrest or confinement except for probable cause. (e) This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.
§15-1E-10. Restraint of persons charged with offenses. Any person subject to this article charged with an offense under this article may be ordered into arrest or confinement, as circumstances may require. When any person subject to this article is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which the person is accused and diligent steps shall be taken to try the person or to dismiss the charges and release the person.
§15-1E-11. Place of confinement; reports and receiving of prisoners. (a) If a person subject to this article is confined before, during, or after trial, confinement shall be in a civilian or military confinement facility. (b) No person authorized to receive prisoners pursuant to section may refuse to receive or keep any prisoner committed to the person's charge by a commissioned officer of the state military forces, when the committing officer furnishes a statement, signed by such officer, of the offense charged against the prisoner, unless otherwise authorized by law. (c) Every person authorized to receive prisoners pursuant to section to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as the person is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment.
§15-1E-12. Confinement with enemy prisoners prohibited. No member of the state military forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the Armed Forces.
§15-1E-13. Punishment prohibited before trial. No person, while being held for trial or awaiting a verdict, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person, nor shall the arrest or confinement imposed upon such person be any more rigorous than the circumstances required to insure the person's presence, but the person may be subjected to minor punishment during that period for infractions of discipline.
§15-1E-14. Delivery of offenders to civil authorities. (a) A person subject to this article accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial or confinement. (b) When delivery under this section is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for the offense shall, upon the request of competent military authority, be returned to the place of original custody for the completion of the person's sentence.
PART III. NONJUDICIAL PUNISHMENT. §15-1E-15. Commanding officer's nonjudicial punishment. (a) Under such regulations as prescribed, any commanding officer (and for purposes of this article, officers-in-charge) may impose disciplinary punishments for minor offenses without the intervention of a court-martial pursuant to this article. The Governor, the Adjutant General, or an officer of a general or flag rank in command may delegate the powers under this section to a principal assistant who is a member of the state military forces. (b) Any commanding officer may impose upon enlisted members of the officer's command: (1) An admonition; (2) A reprimand; (3) The withholding of privileges for not more than six months which need not be consecutive; (4) The forfeiture of pay of not more than seven days' pay; (5) A fine of not more than seven days' pay; (6) A reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction; (7) Extra duties, including fatigue or other duties, for not more than fourteen days, which need not be consecutive; and (8) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen days, which need not be consecutive. (c) Any commanding officer of the grade of major or lieutenant commander, or above may impose upon enlisted members of the officer's command: (1) Any punishment authorized in subsection (b) subdivisions (1), (2), and (3); (2) The forfeiture of not more than one-half of one month's pay per month for two months; (3) A fine of not more than one month's pay; (4) A reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades; (5) Extra duties, including fatigue or other duties, for not more than forty-five days which need not be consecutive; and (6) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty days which need not be consecutive. (d) The Governor, the Adjutant General, an officer exercising general court-martial convening authority, or an officer of a general or flag rank in command may impose: (1) Upon officers of the officer's command: (A) Any punishment authorized in subsection (c) subdivisions (1), (2), (3) and (6); and (B) Arrest in quarters for not more than thirty days which need not be consecutive. (2) Upon enlisted members of the officer's command any punishment authorized in subsection (c). (e) Whenever any of those punishments are combined to run consecutively, the total length of the combined punishment cannot exceed the authorized duration of the longest punishment in the combination, and there must be an apportionment of punishments so that no single punishment in the combination exceeds its authorized length under this article. (f) Prior to the offer of nonjudicial punishment, the commanding officer shall determine whether arrest in quarters or restriction shall be considered as punishments. Should the commanding officer determine that the punishment options may include arrest in quarters or restriction, the accused shall be notified of the right to demand trial by court-martial. Should the commanding officer determine that the punishment options will not include arrest in quarters or restriction, the accused shall be notified that there is no right to trial by courts-martial in lieu of nonjudicial punishment (g) The officer who imposes the punishment, or the successor in command, may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. The officer also may: (1) Mitigate reduction in grade to forfeiture of pay; (2) Mitigate arrest in quarters to restriction; or (3) Mitigate extra duties to restriction. The mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this section by the officer who imposed the punishment mitigated. (h) A person punished under this section who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority within fifteen days after the punishment is either announced or sent to the accused, as the commander may determine. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (g) by the officer who imposed the punishment. Before acting on an appeal from a punishment, the authority that is to act on the appeal may refer the case to a judge advocate for consideration and advice. (i) The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial or a civilian court of competent jurisdiction for a serious crime or offense growing out of the same act or omission and not properly punishable under this article; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial and, when so shown, it shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty. (j) Whenever a punishment of forfeiture of pay is imposed under this article, the forfeiture may apply to pay accruing before, on, or after the date that punishment is imposed. (k) Regulations may prescribe the form of records to be kept of proceedings under this section and may prescribe that certain categories of those proceedings shall be in writing.
PART IV. COURT-MARTIAL JURISDICTION. §15-1E-16. Courts-martial classified. The three kinds of courts-martial in the state military forces are: (1) General courts-martial, consisting of: (A) A military judge and not less than five members; or (B) Only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves; (2) Special courts-martial, consisting of: (A) A military judge and not less than three members; or (B) Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in subdivision (1) of this section so requests; and (3) Summary courts-martial, consisting of one commissioned officer.
§15-1E-17. Jurisdiction of courts-martial in general. Each component of the state military forces has court-martial jurisdiction over all members of the particular component who are subject to this article. Additionally, the Army and Air National Guard state military forces have court-martial jurisdiction over all members subject to this article.
§15-1E-18. Jurisdiction of general courts-martial. Subject to section seventeen of this article, general courts-martial have jurisdiction to try persons subject to this article for any offense made punishable by this article, and may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by this article.
§15-1E-19. Jurisdiction of special courts-martial. Subject to section seventeen, special courts-martial have jurisdiction to try persons subject to this article for any offense made punishable by this article, and may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by this article except dishonorable discharge, dismissal, confinement for more than one year, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year.
§15-1E-20. Jurisdiction of summary courts-martial. (a) Subject to section seventeen of this article, summary courts-martial have jurisdiction to try persons subject to this article, except officers, cadets, candidates, and midshipmen, for any offense made punishable by this article under such limitations as the Governor may prescribe. (b) No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if that person objects thereto. If objection to trial by summary court-martial is made by an accused, trial by special or general court-martial may be ordered, as may be appropriate. Summary courts-martial may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by this article except dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month's pay.
§15-1E-21. Reserved.
PART V. APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL. §15-1E-22. Who may convene general courts-martial. (a) General courts-martial may be convened by: (1) The Governor; (2) The Adjutant General; (3) The commanding officer of a force of the state military forces; (4) The commanding officer of a division or a separate brigade; or (5) The commanding officer of a separate wing. (b) If any such commanding officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such superior authority if considered desirable by such authority.
§15-1E-23. Who may convene special courts-martial. (a) Special courts-martial may be convened by: (1) Any person who may convene a general court-martial; (2) The commanding officer of a garrison, fort, post, camp, station, Air National Guard base, or naval base or station; (3) The commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army; (4) The commanding officer of a wing, group, separate squadron, or corresponding unit of the Air Force; or (5) The commanding officer or officer in charge of any other command when empowered by The Adjutant General. (b) If any such officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such superior authority if considered desirable by such authority.
§15-1E-24. Who may convene summary courts-martial. (a) Summary courts-martial may be convened: (1) By any person who may convene a general or special court-martial; (2) The commanding officer of a detached company or other detachment, or corresponding unit of the Army; (3) The commanding officer of a detached squadron or other detachment, or corresponding unit of the Air Force; or (4) The commanding officer or officer in charge of any other command when empowered by The Adjutant General. (b) When only one commissioned officer is present with a command or detachment that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. Summary courts-martial may, however, be convened in any case by superior competent authority if considered desirable by such authority.
§15-1E-25. Who may serve on courts-martial. (a) Any commissioned officer of the state military forces is eligible to serve on all courts-martial for the trial of any person subject to this article. (b) Any warrant officer of the state military forces is eligible to serve on general and special courts-martial for the trial of any person subject to this article, other than a commissioned officer. (c) Any enlisted member of the state military forces who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member subject to this article, but that member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under subsection (a), section thirty-nine of this article prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained. In this section, "unit" means any regularly organized body of the state military forces not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them. (d) When it can be avoided, no person subject to this article may be tried by a court-martial any member of which is junior to the accused in rank or grade. (e) When convening a court-martial, the convening authority shall detail as members thereof such members of the state military forces as, in the convening authority's opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the state military forces is eligible to serve as a member of a general or special court-martial when that member is the accuser, a witness, or has acted as investigating officer or as counsel in the same case. (f) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. The convening authority may delegate the authority under this subsection to a judge advocate or to any other principal assistant.
§15-1E-26. Military judge of a general or special court-martial. (a) A military judge shall be detailed to each general and special court-martial. The military judge shall preside over each open session of the court-martial to which the military judge has been detailed. (b) A military judge shall be: (1) An active or retired commissioned officer of an organized state military force; (2) A member in good standing of the bar of the highest court of a state or a member of the bar of a federal court for at least five years; and (3) Certified as qualified for duty as a military judge by the senior force judge advocate which is the same force as the accused. (c) In the instance when a military judge is not a member of the bar of the highest court of the state, the military judge shall be deemed admitted pro hac vice, subject to filing a certificate with the senior force judge advocate which is the same force as the accused setting forth such qualifications provided in subsection (b). (d) The military judge of a general or special court-martial shall be designated by the senior force judge advocate which is the same force as the accused, or a designee, for detail by the convening authority. Neither the convening authority nor any staff member of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to performance of duty as a military judge. (e) No person is eligible to act as military judge in a case if that person is the accuser or a witness, or has acted as investigating officer or a counsel in the same case. (f) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel nor vote with the members of the court.
§15-1E-27. Detail of trial counsel and defense counsel. (a) For each general and special court-martial the authority convening the court shall detail trial counsel, defense counsel and such assistants as are appropriate. No person who has acted as investigating officer, military judge, witness or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense nor may any person who has acted for the defense act later in the same case for the prosecution. (b) Except as provided in subsection (c), trial counsel or defense counsel detailed for a general or special court-martial must be a judge advocate as defined in section one of this article and in the case of trial counsel, a member in good standing of the bar of the Supreme Court of Appeals of West Virginia. (c) In the instance when a defense counsel is not a member of the bar of the highest court of the state, the defense counsel shall be deemed admitted pro hac vice, subject to filing a certificate with the military judge setting forth the qualifications that counsel is: (1) A commissioned officer of the Armed Forces of the United States or a component thereof; and (2) A member in good standing of the bar of the highest court of a state; and (3) A certified as a judge advocate in the Judge Advocate General's Corps of the Army, Air Force, Navy, or the Marine Corps; or (4) A judge advocate as defined in section one of this article.
§15-1E-28. Detail or employment of reporters and interpreters. Under such regulations as may be prescribed, the convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court and may detail or employ interpreters who shall interpret for the court.
§15-1E-29. Absent and additional members. (a) No member of a general or special court-martial may be absent or excused after the court has been assembled for the trial of the accused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause. (b) Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than the applicable minimum number of five members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides. (c) Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than three members. The trial shall proceed with the new members present as if no evidence had been introduced previously at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, the accused, and counsel for both sides. (d) If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions of paragraph (b), subdivision (1) or paragraph (b), subdivision (2) of section sixteen of this article, after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused, and counsel for both sides.
PART VI. PRETRIAL PROCEDURE. §15-1E-30. Charges and specifications. (a) Charges and specifications shall be signed by a person subject to this article under oath before a commissioned officer authorized by subsection (a), section one hundred thirtysix of this article to administer oaths and shall state: (1) That the signer has personal knowledge of, or has investigated, the matters set forth therein; and (2) That they are true in fact to the best of the signer's knowledge and belief. (b) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.
§15-1E-31. Compulsory self-incrimination prohibited. (a) No person subject to this article may compel any person to incriminate himself or herself or to answer any question the answer to which may tend to incriminate him or her. (b) No person subject to this article may interrogate or request any statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation and advising that person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial. (c) No person subject to this article may compel any person to make a statement or produce evidence before any military court if the statement or evidence is not material to the issue and may tend to degrade the person. (d) No statement obtained from any person in violation of this section or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against the person in a trial by court-martial.
§15-1E-32. Investigation. (a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline. (b) The accused shall be advised of the charges against the accused and of the right to be represented at that investigation by counsel. The accused has the right to be represented at that investigation as provided in section thirty-eight of this article and in regulations prescribed under this article. At that investigation, full opportunity shall be given to the accused to crossexamine witnesses against the accused, if they are available, and to present anything the accused may desire in the accused's own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused. (c) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b), no further investigation of that charge is necessary under this section unless it is demanded by the accused after the accused is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in the accused's own behalf. (d) If evidence adduced in an investigation under this section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused: (1) Is present at the investigation; (2) Is informed of the nature of each uncharged offense investigated; and (3) Is afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b). (e) The requirements of this section are binding on all persons administering this article but failure to follow them does not constitute jurisdictional error.
§15-1E-33. Forwarding of charges. When a person is held for trial by general court-martial, the commanding officer shall within eight days after the accused is ordered into arrest or confinement, if practicable, forwards the charges, together with the investigation and allied papers, to the person exercising general court-martial jurisdiction. If that is not practicable, the commanding officer shall report in writing to that person the reasons for delay.
§15-1E-34. Advice of judge advocate and reference for trial. (a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that: (1) The specification alleges an offense under this article; (2) The specification is warranted by the evidence indicated in the report of investigation under section thirty-two of this article, if there is such a report; and (3) A court-martial would have jurisdiction over the accused and the offense. (b) The advice of the judge advocate under subsection (a) with respect to a specification under a charge shall include a written and signed statement by the judge advocate: (1) Expressing conclusions with respect to each matter set forth in subsection (a); and (2) Recommending action that the convening authority take regarding the specification. If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification. (c) If the charges or specifications are not correct formally or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made.
§15-1E-35. Service of charges. The trial counsel shall serve or caused to be served upon the accused a copy of the charges. No person may, against the person's objection, be brought to trial before a general courtmartial case within a period of five days after the service of charges upon the accused, or in a special court-martial, within a period of three days after the service of charges upon the accused.
PART VII. TRIAL PROCEDURE. §15-1E-36. Governor or the Adjutant General may prescribe rules. Pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial cases arising under this article, and for courts of inquiry, may be prescribed by the Governor or the Adjutant General by regulations, or as otherwise provided by law, which shall apply the principles of law and the rules of evidence generally recognized in military criminal cases in the courts of the Armed Forces but which may not be contrary to or inconsistent with this article.
§15-1E-37. Unlawfully influencing action of court. (a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, the military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or their functions in the conduct of the proceedings. No person subject to this article may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to their judicial acts. The foregoing provisions of the subsection shall not apply with respect to: (1) General instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or (2) to statements and instructions given in open court by the military judge, summary court-martial officer, or counsel. (b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used, in whole or in part, for the purpose of determining whether a member of the state military forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the state military forces, or in determining whether a member of the state military forces should be retained on active status, no person subject to this article may, in preparing any such report: (1) Consider or evaluate the performance of duty of any such member as a member of a court-martial or witness therein; or (2) Give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a courtmartial.
§15-1E-38. Duties of trial counsel and defense counsel. (a) The trial counsel of a general or special court-martial shall be a member in good standing of the State Bar and shall prosecute in the name of the state, and shall, under the direction of the court, prepare the record of the proceedings. (b) (1) The accused has the right to be represented in defense before a general or special court-martial or at an investigation under section thirty-two of this article as provided in this subsection. (2) The accused may be represented by civilian counsel at the provision and expense of the accused. (3) The accused may be represented: (A) By military counsel detailed under section twenty-seven of this article; or (B) By military counsel of the accused's own selection if that counsel is reasonably available as determined under subdivision (7). (4) If the accused is represented by civilian counsel, military counsel detailed or selected under subdivision (3) shall act as associate counsel unless excused at the request of the accused. (5) Except as provided under subdivision (6), if the accused is represented by military counsel of his or her own selection under paragraph (B), subdivision (3), any military counsel detailed under paragraph (A), subdivision (3), shall be excused. (6) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section twenty-seven of this article to detail counsel, in that person's sole discretion: (A) May detail additional military counsel as assistant defense counsel; and (B) If the accused is represented by military counsel of the accused's own selection under paragraph (B), subdivision (3), may approve a request from the accused that military counsel detailed under paragraph (A), subdivision (3), act as associate defense counsel. (7) The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available. (c) In any court-martial proceeding resulting in a conviction, the defense counsel: (1) May forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel considers appropriate; (2) May assist the accused in the submission of any matter under section sixty of this article; and (3) May take other action authorized by this article.
§15-1E-39. Sessions. (a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject section thirty-five of this article, call the court into session without the presence of the members for the purpose of: (1) Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty; (2) Hearing and ruling upon any matter which may be ruled upon by the military judge under this article, whether or not the matter is appropriate for later consideration or decision by the members of the court; (3) Holding the arraignment and receiving the pleas of the accused; and (4) Performing any other procedural function which does not require the presence of the members of the court under this article. (b) These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of court members and without regard to section twenty-nine. (c) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.
§15-1E-40. Continuances. The military judge of a court-martial or a summary court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.
§15-1E-41. Challenges. (a)(1) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or the court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered. (2) If exercise of a challenge for cause reduces the court below the minimum number of members required by section sixteen of this article, all parties shall, notwithstanding section twenty-nine of this article, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time. (b)(1) Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause. (2) If exercise of a peremptory challenge reduces the court below the minimum number of members required by section sixteen of this article, the parties shall, notwithstanding section twenty-nine of this article, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court. (3) Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.
§15-1E-42. Oaths or affirmations. (a) Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully. The form of the oath or affirmation, the time and place of the taking thereof, the manner of recording the same, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulation or as provided by law. These regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if such an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty. (b) Each witness before a court-martial shall be examined under oath or affirmation.
§15-1E-43. Statute of limitations. (a) Except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial or punished under section fifteen of this article if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment under section fifteen of this article. (b) Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this article. (c) Periods in which the accused was absent from territory in which the state has the authority to apprehend him or her, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article. (d) When the United States is at war, the running of any statute of limitations applicable to any offense under this article: (1) Involving fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not; (2) Committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States or any state; or (3) Committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or government agency; is suspended until two years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress. (e)(1) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations: (A) Has expired or will expire. (B) Will expire within one hundred eighty days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in subdivision (2) are met. (2) The conditions referred to in subdivision (1) are that the new charges and specifications must: (A) Be received by an officer exercising summary court-martial jurisdiction over the command within one hundred eighty days after the dismissal of the charges or specifications; and (B) Allege the same acts or omissions that were alleged in the dismissed charges or specifications or allege acts or omissions that were included in the dismissed charges or specifications.
§15-1E-44. Former jeopardy. (a) No person may, without his or her consent, be tried a second time for the same offense. (b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. (c) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article.
§15-1E-45. Pleas of the accused. (a) If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty. (b) With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.
§15-1E-46. Opportunity to obtain witnesses and other evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courtsmartial generally recognized in military criminal cases in the courts of the Armed Forces of the United States, but which may not be contrary to or inconsistent with this article. Process shall run to any part of the United States, or the Territories, Commonwealths, and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.
§15-1E-47. Refusal to appear or testify. (a) Any person not subject to this article who: (1) Has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before such a court; (2) Has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of the state; and (3) Willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce; may be punished by the military court in the same manner as a criminal court of the state. (b) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.
§15-1E-48. Contempts. A military judge or summary court-martial officer may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. (1) A person subject to this article may be punished for contempt by confinement not to exceed thirty days or a fine of $100, or both. (2) A person not subject to this article may be punished for contempt by a military court in the same manner as a criminal court of the state.
§15-1E-49. Depositions. (a) At any time after charges have been signed as provided in section thirty of this article, any party may take oral or written depositions unless the military judge or summary courtmartial officer hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. (b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. (c) Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths. (d) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, digital image or file, or similar material, may be played in evidence before any military court, if it appears: (1) That the witness resides or is beyond the state in which the court is ordered to sit, or beyond one hundred miles from the place of trial or hearing; (2) That the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, non amenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or (3) That the present whereabouts of the witness is unknown.
§15-1E-50. Admissibility of records of courts of inquiry. (a) In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. (b) Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer. (c) Such testimony may also be read in evidence before a court of inquiry.
§15-1E-50a. Defense of lack of mental responsibility. (a) It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense. (b) The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. (c) Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused: (1) Guilty; (2) Not guilty; or (3) Not guilty only by reason of lack of mental responsibility. (d) Subsection (c) does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only or a summary court-martial officer, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge or summary court-martial officer shall find the accused: (1) Guilty; (2) Not guilty; or (3) Not guilty only by reason of lack of mental responsibility. (e) Notwithstanding the provisions of section fifty-two of this article, the accused shall be found not guilty only by reason of lack of mental responsibility if: (1) A majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or (2) In the case of a court-martial composed of a military judge only or a summary court-martial officer, the military judge or summary court-martial officer determines that the defense of lack of mental responsibility has been established.
§15-1E-51. Voting and rulings. (a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court. (b) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section fifty-two of this article, beginning with the junior in rank. (c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them: (1) That the accused must be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond reasonable doubt; (2) That in the case being considered, if there is a or reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted; (3) That, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and (4) That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state. (d) Subsections (a), (b), and (c) do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition, on request, find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
§15-1E-52. Number of votes required. (a) No person may be convicted of an offense except as provided in section forty-two of this article or by the concurrence of two thirds of the members present at the time the vote is taken. (b) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.
§15-1E-53. Court to announce action. A court-martial shall announce its findings and sentence to the parties as soon as determined.
§15-1E-54. Record of trial. (a) Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his or her death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member, if the trial counsel is unable to authenticate it by reason of his or her death, disability, or absence. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection. (b) (1) A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction. (2) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations. (c) Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner as may be prescribed by regulations. (d) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.
PART VIII. SENTENCES. §15-1E-55. Cruel and unusual punishments prohibited. Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment may not be adjudged by a court-martial or inflicted upon any person subject to this article. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
§15-1E-56. Maximum limits. (a) The punishment which a court-martial may direct for an offense may not exceed such limits as prescribed by this article, but in no instance may a sentence exceed more than ten years for a military offense, nor shall a sentence of death be adjudged. A conviction by general court-martial of any military offense for which an accused may receive a sentence of confinement for more than one year is a felony offense. Except for convictions by a summary court-martial, all other military offenses are misdemeanors. Any conviction by a summary court-martial is not a criminal conviction. (b) The limits of punishment for violations of the punitive articles prescribed herein shall be lesser of the sentences prescribed by the manual for courts-martial of the United States in effect on January 1, 2004, and the state manual for courts-martial, but in no instance shall any punishment exceed that authorized by this article.
§15-1E-57. Effective date of sentences. (a) Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority. No forfeiture may extend to any pay or allowances accrued before that date. (b) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement. (c) All other sentences of courts-martial are effective on the date ordered executed.
§15-1E-57a. Deferment of sentences. (a) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under that person's jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in that person's sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the person who granted it or, if the accused is no longer under that person's jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned. (b)(1) In any case in which a court-martial sentences an accused referred to in subdivision (2) of this subsection, to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the state military forces by a state, the United States, or a foreign country referred to in that subdivision. (2) Subdivision (1) of this subsection applies to a person subject to this article who: (A) While in the custody of a state, the United States, or a foreign country is temporarily returned by that state, the United States, or a foreign country to the state military forces for trial by court-martial; and (B) After the court-martial, is returned to that state, the United States, or a foreign country under the authority of a mutual agreement or treaty, as the case may be. (3) In this subsection, the term "state" includes the District of Columbia and any Commonwealth, Territory, or possession of the United States. (c) In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under subsection (a), section sixty-seven of this article is pending, the Adjutant General may defer further service of the sentence to confinement while that review is pending.
§15-1E-58. Execution of confinement. (a) A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place authorized by this article. Persons so confined are subject to the same discipline and treatment as persons regularly confined or committed to that place of confinement. (b) The omission of "hard labor" as a sentence authorized under this article does not deprive the state confinement facility from employing it, if it otherwise is within the authority of that facility to do so. (c) No place of confinement may require payment of any fee or charge for so receiving or confining a person except as otherwise provided by law.
§15-1E-58a. Sentences: Reduction in enlisted grade upon approval. (a) A court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes: (1) A dishonorable or bad-conduct discharge; or (2) Confinement; reduces that member to pay grade E-1, effective on the date of that approval. (b) If the sentence of a member who is reduced in pay grade under subsection (a) is set aside or disapproved, or, as finally approved, does not include any punishment named in subsection (a), the rights and privileges of which the person was deprived because of that reduction shall be restored, including pay and allowances.
§15-1E-58b. Sentences: Forfeiture of pay and allowances during confinement. (a)(1) A court-martial sentence described in subdivision (2) of this subsection shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined under subsection (a), section fifty-seven of this article and may be deferred as provided by that section. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during such period and, in the case of a special court-martial, shall be two-thirds of all pay due that member during such period. (2) A sentence covered by this section is any sentence that includes: (A) Confinement for more than six months; or (B) Confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal. (b) In a case involving an accused who has dependents, the convening authority or other person acting under section sixty of this article may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a period not to exceed six months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused. (c) If the sentence of a member who forfeits pay and allowances under subsection (a) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subdivision (2), subsection (a), the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.
PART IX. POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL. §15-1E-59. Error of law; lesser included offense. (a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. (b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.
§15-1E-60. Action by the convening authority. (a) The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence. (b)(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Except in a summary court-martial case, such a submission shall be made within ten days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of a judge advocate under subsection (d). In a summary court-martial case, such a submission shall be made within seven days after the sentence is announced. (2) If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this section, for good cause, may extend the applicable period under subdivision (1) for not more than an additional twenty days. (3) In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by subdivision (1). (4) The accused may waive the right to make a submission to the convening authority under subdivision (1). Such a waiver must be made in writing and may not be revoked. For the purposes of subdivision (2), subsection (c), the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of such a waiver to the convening authority. (c)(1) The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward the case to a person exercising general court-martial jurisdiction who may take action under this section. (2) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in that person's sole discretion may approve, disapprove, commute, or suspend the sentence in whole or in part. (3) Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in the person's sole discretion may: (A) Dismiss any charge or specification by setting aside a finding of guilty thereto; or (B) Change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification. (d) Before acting under this section on any general or special court-martial case in which there is a finding of guilt, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of a judge advocate. The convening authority or other person taking action under this section shall refer the record of trial to the judge advocate, and the judge advocate shall use such record in the preparation of the recommendation. The recommendation of the judge advocate shall include such matters as may be prescribed by regulation and shall be served on the accused, who may submit any matter in response under subsection (b). Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto. (e)(1) The convening authority or other person taking action under this section, in the person's sole discretion, may order a proceeding in revision or a rehearing. (2) A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision: (A) Reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty; (B) Reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some section of this article; or (C) Increase the severity of the sentence unless the sentence prescribed for the offense is mandatory. (3) A rehearing may be ordered by the convening authority or other person taking action under this section if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, that person shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.
§15-1E-61. Withdrawal of appeal. (a) In each case subject to appellate review under this article, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to such appeal. Such a withdrawal shall be signed by both the accused and his or her defense counsel and must be filed in accordance with appellate procedures as provided by law. (b) The accused may withdraw an appeal at any time in accordance with appellate procedures as provided by law.
§15-1E-62. Appeal by the state. (a)(1) In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial so long as it is not made in reconsideration: (A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification. (B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding. (C) An order or ruling which directs the disclosure of classified information. (D) An order or ruling which imposes sanctions for nondisclosure of classified information. (E) A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information. (F) A refusal by the military judge to enforce an order described in paragraph (E) that has previously been issued by appropriate authority. (2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within seventy-two hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding. (3) An appeal under this section shall be diligently prosecuted as provided by law. (b) An appeal under this section shall be forwarded to the court prescribed in section sixty-seven-a of this article. In ruling on an appeal under this article, that court may act only with respect to matters of law. (c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.
§15-1E-63. Rehearings. Each rehearing under this article shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he or she was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.
§15-1E-64. Review by the senior force judge advocate. (a) Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the senior force judge advocate, or a designee. The senior force judge advocate, or designee, may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate's review shall be in writing and shall contain the following: (1) Conclusions as to whether: (A) The court had jurisdiction over the accused and the offense; (B) The charge and specification stated an offense; and (C) The sentence was within the limits prescribed as a matter of law. (2) A response to each allegation of error made in writing by the accused. (3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law. (b) The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the Adjutant General, if: (1) The judge advocate who reviewed the case recommends corrective action; (2) The sentence approved under subsection (c), section sixty of this article extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or (3) Such action is otherwise required by regulations of the Adjutant General. (c)(1) The Adjutant General may: (A) Disapprove or approve the findings or sentence, in whole or in part; (B) Remit, commute, or suspend the sentence in whole or in part; (C) Except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or (D) Dismiss the charges. (2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges. (3) If the opinion of the senior force judge advocate, or designee, in the senior force judge advocate's review under subsection (a) is that corrective action is required as a matter of law and if the Adjutant General does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the Governor for review and action as deemed appropriate. (d) The senior force judge advocate, or a designee, may review any case in which there has been a finding of not guilty of all charges and specifications. The senior force judge advocate, or designee, may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate's review shall be limited to questions of subject matter jurisdiction. (e) The record of trial and related documents in each case reviewed under subsection (d) shall be sent for action to The Adjutant General. The Adjutant General may: (1) When subject matter jurisdiction is found to be lacking, void the court-martial ab initio, with or without prejudice to the Government, as the Adjutant General deems appropriate; or (2) Return the record of trial and related documents to the senior force judge advocate for appeal by the Government as provided by law.
§15-1E-65. Disposition of records after review by the convening authority. Except as otherwise required by this article, all records of trial and related documents shall be transmitted and disposed of as prescribed by regulation and provided by law.
§15-1E-66. Reserved.
§15-1E-67. Reserved.
§15-1E-67a. Review by State Appellate Authority. Decisions of a court-martial are from a court with jurisdiction to issue felony convictions and appeals are to the West Virginia Supreme Court of Appeals. The appellate procedures to be followed shall be those provided by law for the appeal of criminal cases thereto.
§15-1E-68. Reserved.
§15-1E-69. Reserved.
§15-1E-70. Appellate counsel. (a) The senior force judge advocate shall detail a judge advocate as appellate government counsel to represent the state in the review or appeal of cases specified in section sixtyseven-a of this article and before any federal court when requested to do so by the state Attorney General. Appellate government counsel must be a member in good standing of the bar of the highest court of the state to which the appeal is taken. (b) Upon an appeal by the state, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court. (c) Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority. (d) Upon the request of an accused entitled to be so represented, the senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subsections (b) and (c) of this section. (e) An accused may be represented by civilian appellate counsel at no expense to the state.
§15-1E-71. Execution of sentence; suspension of sentence. (a) If the sentence of the court-martial extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn under section sixty-one of this article, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings. A judgment as to the legality of the proceedings is final in such cases when review is completed by an appellate court prescribed in section sixty-seven-a of this article, and is deemed final by the law of state where the judgment was had. (b) If the sentence of the court-martial extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn under section sixty-one of this article, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under section sixty-four of this article is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under section sixty of this article when so approved under that section.
§15-1E-72. Vacation of suspension. (a) Before the vacation of the suspension of a special court-martial sentence, which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on an alleged violation of probation. The probationer shall be represented at the hearing by military counsel if the probationer so desires. (b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in this article. (c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.
§15-1E-73. Petition for a new trial. At any time within two years after approval by the convening authority of a court-martial sentence the accused may petition the Adjutant General for a new trial on the grounds of newly discovered evidence or fraud on the court-martial.
§15-1E-74. Remission and suspension. (a) Any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the Governor. (b) The Governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.
§15-1E-75. Restoration. (a) Under such regulations as may be prescribed, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing. (b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Governor may substitute therefore a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused's enlistment. (c) If a previously executed sentence of dismissal is not imposed on a new trial, the Governor may substitute therefore a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the Governor alone to such commissioned grade and with such rank as in the opinion of the Governor that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the Governor may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
§15-1E-76. Finality of proceedings, findings, and sentences. The appellate review of records of trial provided by this article, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this article, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this article, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States and the several states, subject only to action upon a petition for a new trial as provided in section seventy-three of this article and to action under section seventy-four of this article.
§15-1E-76a. Leave required to be taken pending review of certain court-martial convictions. Under regulations prescribed, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this section if the sentence, as approved under section sixty of this article, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin such leave on the date on which the sentence is approved under section sixty of this article or at any time after such date, and such leave may be continued until the date on which action under this section is completed or may be terminated at any earlier time.
§15-1E-76b. Lack of mental capacity or mental responsibility: Commitment of accused for examination and treatment. (a) Persons incompetent to stand trial. (1) In the case of a person determined under this article to be presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings against that person or to conduct or cooperate intelligently in the defense of the case, the general court-martial convening authority for that person shall commit the person to the custody of the Department of Health and Human Resources. (2) The Department of Health and Human Resources shall take action in accordance with the state statute applicable to persons incompetent to stand trial. If at the end of the period for hospitalization provided in the state statute applicable to persons incompetent to stand trial, it is determined that the committed person's mental condition has not so improved as to permit the trial to proceed, action shall be taken in accordance with the state statute applicable to persons incompetent to stand trial. (3)(A) When the director of a facility in which a person is hospitalized pursuant to subdivision (2) determines that the person has recovered to such an extent that the person is able to understand the nature of the proceedings against the person and to conduct or cooperate intelligently in the defense of the case, the director shall promptly transmit a notification of that determination to the Department of Health and Human Resources and to the general court-martial convening authority for the person. The director shall send a copy of the notification to the person's counsel. (B) Upon receipt of a notification, the general court-martial convening authority shall promptly take custody of the person unless the person covered by the notification is no longer subject to this article. If the person is no longer subject to this article, the Department of Health and Human Resources shall take any action within its authority it considers appropriate regarding the person. (C) The director of the facility may retain custody of the person for not more than thirty days after transmitting the notifications required by subdivision (3), subsection (a). (4) In the application of the state statute applicable to persons incompetent to stand trial to a case under this subsection, references to the court that ordered the commitment of a person, and to the clerk of such court, shall be deemed to refer to the general court-martial convening authority for that person. However, if the person is no longer subject to this article at a time relevant to the application of such section to the person, the state trial court with felony jurisdiction in the county where the person is hospitalized or otherwise may be found shall be considered as the court that ordered the commitment of the person. (b) Persons found not guilty by reason of lack of mental responsibility. (1) If a person is found by a court-martial not guilty only by reason of lack of mental responsibility, the person shall be committed to a suitable facility until the person is eligible for release in accordance with this article. (2) The court-martial shall conduct a hearing on the mental condition in accordance with the state statute applicable to persons incompetent to stand trial. (3) A report of the results of the hearing shall be made to the general court-martial convening authority for the person. (4) If the court-martial fails to find, by the standard specified in the state statute applicable to persons incompetent to stand trial, that the person's release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect: (A) The general court-martial convening authority may commit the person to the custody of the Department of Health and Human Resources; and (B) The Department of Health and Human Resources shall take action in accordance with the state statute applicable to persons incompetent to stand trial. (5) The state statute applicable to persons incompetent to stand trial, shall apply in the case of a person hospitalized pursuant to paragraph (B), subdivision (4), except that the state trial court with felony jurisdiction in the county where the person is hospitalized shall be considered as the court that ordered the person's commitment. (c) General provisions. (1) Except as otherwise provided in this subsection and subdivision (1), subsection (d), the state statute most closely comparable to 18 U.S.C. 4247(d), apply in the administration of this section. (2) In the application of the state statute most closely comparable to 18 U.S.C. 4247(d), to hearings conducted by a court-martial under this section or by order of a general courtmartial convening authority under this article, the reference in that section to article 3006A of such title does not apply. (d) Applicability. (1) The state statute most closely comparable to chapter 313 of title 18, United States Code, [10 U.S.C. §4241 et seq.] referred to in this section apply according to the provisions of this section notwithstanding article 4247(j) of title 18. (2) If the status of a person as described in section two of this article, terminates while the person is, pursuant to this section, in the custody of the Department of Health and Human Resources, hospitalized, or on conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, the provisions of this section establishing requirements and procedures regarding a person no longer subject to this article shall continue to apply to that person notwithstanding the change of status.
PART X. PUNITIVE ARTICLES. §15-1E-77. Principals. Any person subject to this article is a principal who: (1) Commits an offense punishable by this article, or aids, abets, counsels, commands, or procures its commission; or (2) Causes an act to be done which if directly performed by him or her would be punishable by this article.
§15-1E-78. Accessory after the fact. Any person subject to this article who, knowing that an offense punishable by this article has been committed, receives, comforts, or assists the offender in order to hinder or prevent his or her apprehension, trial, or punishment shall be punished as a court-martial may direct.
§15-1E-79. Conviction of lesser included offense. An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.
§15-1E-80. Attempts. (a) An act, done with specific intent to commit an offense under this article, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense. (b) Any person subject to this article who attempts to commit any offense punishable by this article shall be punished as a court-martial may direct, unless otherwise specifically prescribed. (c) Any person subject to this article may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.
§15-1E-81. Conspiracy. Any person subject to this article who conspires with any other person to commit an offense under this article shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.
§15-1E-82. Solicitation. (a) Any person subject to this article who solicits or advises another or others to desert in violation of section eighty-five of this article or mutiny in violation of section ninety-four of this article shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, the person shall be punished as a court-martial may direct. (b) Any person subject to this article who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of section ninety-nine of this article or sedition in violation of section ninety-four of this article shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, the person shall be punished as a court-martial may direct.
§15-1E-83. Fraudulent enlistment, appointment, or separation. Any person, shall be punished as a court-martial may direct, who: (1) Procures his or her own enlistment or appointment in the state military forces by knowingly false representation or deliberate concealment as to his or her qualifications for that enlistment or appointment and receives pay or allowances there under; or (2) Procures his or her own separation from the state military forces by knowingly false representation or deliberate concealment as to his or her eligibility for that separation.
§15-1E-84. Unlawful enlistment, appointment, or separation. Any person subject to this article who effects an enlistment or appointment in or a separation from the state military forces of any person who is known to him or her to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.
§15-1E-85. Desertion. (a) Any member of the state military forces who: (1) Without authority goes or remains absent from his or her unit, organization, or place of duty with intent to remain away there from permanently; (2) Quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or (3) Without being regularly separated from one of the state military forces enlists or accepts an appointment in the same or another one of the state military forces, or in one of the Armed Forces of the United States, without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion. (b) Any commissioned officer of the state military forces who, after tender of his or her resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away there from permanently is guilty of desertion. (c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by confinement of not more than ten years or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment as a court-martial may direct.
§15-1E-86. Absence without leave. Any person subject to this article who, without authority: (1) Fails to go to his or her appointed place of duty at the time prescribed; (2) Goes from that place; or (3) Absents himself or herself or remains absent from his or her unit, organization, or place of duty at which he or she is required to be at the time prescribed; shall be punished as a court-martial may direct.
§15-1E-87. Missing movement. Any person subject to this article who through neglect or design misses the movement of a ship, aircraft, or unit with which he or she is required in the course of duty to move shall be punished as a court-martial may direct.
§15-1E-88. Contempt toward officials. Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or Legislature of the state shall be punished as a court-martial may direct.
§15-1E-89. Disrespect toward superior commissioned officer. Any person subject to this article who behaves with disrespect toward his or her superior commissioned officer shall be punished as a court-martial may direct.
§15-1E-90. Assaulting or willfully disobeying superior commissioned officer. Any person subject to this article who: (1) Strikes his or her superior commissioned officer or draws or lifts up any weapon or offers any violence against him or her while he or she is in the execution of his or her office; or (2) Willfully disobeys a lawful command of his or her superior commissioned officer; (3) Shall be punished, if the offense is committed in time of war, by confinement of not more than ten years or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment as a court-martial may direct.
§15-1E-91. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer. Any warrant officer or enlisted member who: (1) Strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his or her office; (2) Willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or (3) Treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his or her office; shall be punished as a court-martial may direct.
§15-1E-92. Failure to obey order or regulation. Any person subject to this article who: (1) Violates or fails to obey any lawful general order or regulation; (2) Having knowledge of any other lawful order issued by a member of the state military forces, which it is his or her duty to obey, fails to obey the order; or (3) Is derelict in the performance of his or her duties; shall be punished as a court-martial may direct.
§15-1E-93. Cruelty and maltreatment. Any person subject to this article who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.
§15-1E-94. Mutiny or sedition. (a) Any person subject to this article who: (1) With intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his or her duty or creates any violence or disturbance is guilty of mutiny; (2) With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; (3) Fails to do his or her utmost to prevent and suppress a mutiny or sedition being committed in his or her presence, or fails to take all reasonable means to inform his or her superior commissioned officer or commanding officer of a mutiny or sedition which he or she knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition. (b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.
§15-1E-95. Resistance, flight, breach of arrest, and escape. Any person subject to this article who: (1) Resists apprehension; (2) Flees from apprehension; (3) Breaks arrest; or (4) Escapes from custody or confinement; shall be punished as a court-martial may direct.
§15-1E-96. Releasing prisoner without proper authority. Any person subject to this article who, without proper authority, releases any prisoner committed to his or her charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.
§15-1E-97. Unlawful detention. Any person subject to this article who, except as provided by law or regulation, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.
§15-1E-98. Noncompliance with procedural rules. Any person subject to this article who: (1) Is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this article; or (2) Knowingly and intentionally fails to enforce or comply with any provision of this article regulating the proceedings before, during, or after trial of an accused; shall be punished as a court-martial may direct.
§15-1E-99. Misbehavior before the enemy. Any person subject to this article who before or in the presence of the enemy: (1) Runs away; (2) Shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his or her duty to defend; (3) Through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property; (4) Casts away his or her arms or ammunition; (5) Is guilty of cowardly conduct; (6) Quits his or her place of duty to plunder or pillage; (7) Causes false alarms in any command, unit, or place under control of the Armed Forces of the United States or the state military forces; (8) Willfully fails to do his or her utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his or her duty so to encounter, engage, capture, or destroy; or (9) Does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the Armed Forces belonging to the United States or their allies, to the state, or to any other state, when engaged in battle; shall be punished as a court-martial may direct.
§15-1E-100. Subordinate compelling surrender. Any person subject to this article who compels or attempts to compel the commander of any of the state military forces of the state, or of any other state, place, vessel, aircraft, or other military property, or of any body of members of the Armed Forces, to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished as a court-martial may direct.
§15-1E-101. Improper use of countersign. Any person subject to this article who in time of war discloses the parole or countersign to any person not entitled to receive it or who gives to another, who is entitled to receive and use the parole or countersign, a different parole or countersign from that which, to his knowledge, he was authorized and required to give, shall be punished as a court-martial may direct.
§15-1E-102. Forcing a safeguard. Any person subject to this article who forces a safeguard shall be punished as a court-martial may direct.
§15-1E-103. Captured or abandoned property. (a) All persons subject to this article shall secure all public property taken for the service of the United States or the state, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this article who: (1) Fails to carry out the duties prescribed in subsection (a); (2) Buys, sells, trades, or in any way deals in or disposes of taken, captured, or abandoned property, whereby he or she receives or expects any profit, benefit, or advantage to himself, herself or another directly or indirectly connected with himself or herself; or (3) Engages in looting or pillaging; shall be punished as a court-martial may direct.
§15-1E-104. Aiding the enemy. Any person subject to this article who: (1) Aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) Without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly: shall be punished as a court-martial may direct.
§15-1E-105. Misconduct as prisoner. Any person subject to this article who, while in the hands of the enemy in time of war: (1) For the purpose of securing favorable treatment by his or her captors acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or (2) While in a position of authority over such persons maltreats them without justifiable cause; shall be punished as a court-martial may direct.
§15-1E-106. Reserved.
§15-1E-107. False official statements. Any person subject to this article who, with intent to deceive, signs any false record, return, regulation, order, or other official document made in the line of duty, knowing it to be false, or makes any other false official statement made in the line of duty, knowing it to be false, shall be punished as a court-martial may direct.
§15-1E-108. Military property - Loss, damage, destruction, or wrongful disposition. Any person subject to this article who, without proper authority: (1) Sells or otherwise disposes of; (2) Willfully or through neglect damages, destroys, or loses; or (3) Willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of; any military property of the United States or of any state, shall be punished as a court-martial may direct.
§15-1E-109. Property other than military property - Waste, spoilage, or destruction. Any person subject to this article who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of any state shall be punished as a court-martial may direct.
§15-1E-110. Improper hazarding of vessel. (a) Any person subject to this article who willfully and wrongfully hazards or suffers to be hazarded any vessel of the Armed Forces of the United States or any state military forces shall suffer such punishment as a court-martial may direct. (b) Any person subject to this article who negligently hazards or suffers to be hazarded any vessel of the Armed Forces of the United States or any state military forces shall be punished as a court-martial may direct.
§15-1E-111. Reserved.
§15-1E-112. Drunk on duty. Any person subject to this article other than a sentinel or lookout, who is found drunk on duty, shall be punished as a court-martial may direct.
§15-1E-112a. Wrongful use, possession, etc., of controlled substances. (a) Any person subject to this article who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the Armed Forces of the United States or of any state military forces a substance described in subsection (b) shall be punished as a court-martial may direct. (b) The substances referred to in subsection (a) are the following: (1) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid and marijuana and any compound or derivative of any such substance. (2) Any substance not specified in subdivision (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of the Uniform Code of Military Justice of the Armed Forces of the United States. (3) Any other substance not specified in subdivision (1) or contained on a list prescribed by the President under subdivision (2) that is listed in schedules I through V of article 202 of the Controlled Substances Act 21 U.S.C. §812.
§15-1E-113. Misbehavior of sentinel. Any sentinel or look-out who is found drunk or sleeping upon his post or leaves it before being regularly relieved, shall be punished, if the offense is committed in time of war, by confinement of not more than ten years or other punishment as a court-martial may direct, but if the offense is committed at any other time, by such punishment as a court-martial may direct.
§15-1E-114. Dueling. Any person subject to this article who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court-martial may direct.
§15-1E-115. Malingering. Any person subject to this article who for the purpose of avoiding work, duty, or service: (1) Feigns illness, physical disablement, mental lapse, or derangement; or (2) Intentionally inflicts self-injury; shall be punished as a court-martial may direct.
§15-1E-116. Riot or breach of peace. Any person subject to this article who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.
§15-1E-117. Provoking speeches or gestures. Any person subject to this article who uses provoking or reproachful words or gestures towards any other person subject to this article shall be punished as a court-martial may direct.
§15-1E-118. Reserved.
§15-1E-119. Reserved.
§15-1E-120. Reserved.
§15-1E-121. Reserved.
§15-1E-122. Reserved.
§15-1E-123. Reserved.
§15-1E-124. Reserved.
§15-1E-125. Reserved.
§15-1E-126. Reserved.
§15-1E-127. Reserved.
§15-1E-128. Reserved.
§15-1E-129. Reserved.
§15-1E-130. Reserved.
§15-1E-131. Reserved.
§15-1E-132. Frauds against the government. Any person subject to this article: (1) Who, knowing it to be false or fraudulent: (A) Makes any claim against the United States, the state, or any officer thereof; or (B) Presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States, the state, or any officer thereof; (2) Who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States, the state, or any officer thereof: (A) Makes or uses any writing or other paper knowing it to contain any false or fraudulent statements; (B) Makes any oath, affirmation or certification to any fact or to any writing or other paper knowing the oath, affirmation or certification to be false; or (C) Forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited; (3) Who, having charge, possession, custody, or control of any money, or other property of the United States or the state, furnished or intended for the Armed Forces of the United States or the state military forces, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he or she receives a certificate or receipt; or (4) Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States or the state, furnished or intended for the Armed Forces of the United States or the state military forces, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or the state; shall, upon conviction, be punished as a court-martial may direct.
§15-1E-133. Conduct unbecoming an officer and a gentleman. Any commissioned officer, cadet, candidate, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.
§15-1E-134. General article. Though not specifically mentioned in this article, all disorders and neglects to the prejudice of good order and discipline in the state military forces and all conduct of a nature to bring discredit upon the state military forces shall be taken cognizance of by a court-martial and punished at the discretion of a military court. However, where a crime constitutes an offense that violates both this article and the criminal laws of the state where the offense occurs or criminal laws of the United States, jurisdiction of the military court must be determined in accordance with subsection (b), section two of this article.
PART XI. MISCELLANEOUS PROVISIONS. §15-1E-135. Courts of inquiry. (a) Courts of inquiry to investigate any matter of concern to the state military forces may be convened by any person authorized to convene a general court-martial, whether or not the persons involved have requested such an inquiry. (b) A court of inquiry consists of three or more commissioned officers. For each court of inquiry, the convening authority shall also appoint counsel for the court. (c) Any person subject to this article whose conduct is subject to inquiry shall be designated as a party. Any person subject to this article who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence. (d) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court. (e) The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath to faithfully perform their duties. (f) Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial. (g) Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority. (h) Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.
§15-1E-136. Authority to administer oaths and to act as notary. (a) The following persons may administer oaths for the purposes of military administration, including military justice: (1) All judge advocates. (2) All summary courts-martial. (3) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants. (4) All commanding officers of the naval militia. (5) All other persons designated by regulations of the Armed Forces of the United States or by statute. (b) The following persons may administer oaths necessary in the performance of their duties: (1) The president, military judge, and trial counsel for all general and special courts-martial. (2) The president and the counsel for the court of any court of inquiry. (3) All officers designated to take a deposition. (4) All persons detailed to conduct an investigation. (5) All recruiting officers. (6) All other persons designated by regulations of the Armed Forces of the United States or by statute. (c) The signature without seal of any such person, together with the title of his office, is prima facie evidence of the person's authority.
§15-1E-137. Articles to be explained. (a) (1) The sections of this article specified in subdivision (3) shall be carefully explained to each enlisted member at the time of, or within thirty days after, the member's initial entrance into a duty status with the state military forces. (2) Such section shall be explained again: (A) After the member has completed basic or recruit training; and (B) At the time when the member reenlists. (3) This subsection applies with respect to sections two, three, seven through fifteen, twenty-five, twenty-seven, thirty-one, thirty-seven, thirty-eight, fifty-five, seventy-seven through one hundred thirty-four, and one hundred thirty-seven through one hundred thirty-nine of this article. (b) The text of the article and of the regulations prescribed under this article shall be made available to a member of the state military forces, upon request by the member, for the member's personal examination.
§15-1E-138. Complaints of wrongs. Any member of the state military forces who believes himself or herself wronged by a commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and shall, as soon as possible, send to the Adjutant General a true statement of that complaint, with the proceedings had thereon.
§15-1E-139. Redress of injuries to property. (a) Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that the person's property has been wrongfully taken by members of the state military forces, that person may, under such regulations prescribed, convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by that officer shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive on any disbursing officer for payment to the injured parties of the damages so assessed and approved. (b) If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.
§15-1E-140. Delegation by the Governor. The Governor may delegate any authority vested in the Governor under this article, and provide for the sub delegation of any such authority, except the power given the Governor by section twenty-two of this article.
§15-1E-141. Payment of fees, costs and expenses. (a) The fees and authorized travel expenses of all witnesses, experts, victims, court reporters and interpreters, fees for the service of process, the costs of collection, apprehension, detention and confinement, and all other necessary expenses of prosecution and the administration of military justice, not otherwise payable by any other source, shall be paid out of the military justice fund. (b) For the foregoing purposes, there is created in the State Treasury a special revenue account, designated the Military Justice Fund that shall be administered by the Adjutant General, from which expenses of military justice shall be paid in the amounts and manner as prescribed by law. The Legislature may appropriate and have deposited in the Military Justice Fund such funds as it deems necessary to carry out the purposes of this article.
§15-1E-142. Payment of fines and disposition thereof. (a) Fines imposed by a military court or through imposition of nonjudicial punishment may be paid to the state and delivered to the court or imposing officer, or to a person executing their process. Fines may be collected in the following manner: (1) By cash or money order; (2) By credit or debit cards in accordance with rules promulgated by the Adjutant General. Any charges made by the credit company shall be paid by the person responsible for paying the fine or costs; (3) By retention of any pay or allowances due or to become due the person fined from any state or the United States; (4) By garnishment or levy, together with costs, on the wages, goods, and chattels of a person delinquent in paying a fine, as provided by law. (b) Unless otherwise required by law, a military court may collect a portion of any costs or fines at the time the amount is imposed by the court so long as the court requires the balance to be paid in accordance with a payment plan which specifies: (1) The number of payments to be made; (2) the dates on which the payments are due; and (3) the amounts due for each payment. The written agreement represents the minimum payments and the last date those payments may be made. The obligor or the obligor's agent may accelerate the payment schedule at any time by paying any additional portion of any costs or fines. (c) If any costs or fines imposed by a military court or through nonjudicial punishment in a case are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the Adjutant General may notify the Commissioner of the Division of Motor Vehicles of the failure to pay: Provided, That in a case in which a person is a nonresident of this state and is assessed a fine or costs by a military court or through nonjudicial punishment, the Adjutant General may notify the Division of Motor Vehicles of the failure to pay within eighty days from the date of judgment and expiration of any stay of execution. Upon notice, the Division of Motor Vehicles shall suspend any privilege the person defaulting on payment may have to operate a motor vehicle in this state, including any driver's license issued to the person by the Division of Motor Vehicles, until all costs or fines are paid in full: Provided, That any person who has had his or her license to operate a motor vehicle in this state suspended pursuant to this subsection and his or her failure to pay is based upon inability to pay, may, if he or she is employed on a full or part-time basis, petition to the Adjutant General for an order authorizing him or her to operate a motor vehicle solely for employment purposes. Upon a showing satisfactory to the Adjutant General of inability to pay, employment and compliance with other applicable motor vehicle laws, the Adjutant General shall issue an order granting relief. (d) Any sum so received or retained shall be deposited in the Military Justice Fund or to whomever the court so directs.
§15-1E-143. Uniformity of interpretation. This article shall be so construed as to effectuate its general purpose to make it uniform, so far as practical, with the Uniform Code of Military Justice, chapter 47 of title 10, United States Code.
§15-1E-144. Immunity for action of military courts. All persons acting under the provisions of this article, whether as a member of the military or as a civilian, shall be immune from any personal liability for any of the acts or omissions which they did or failed to do as part of their duties under this article.
§15-1E-145. Reserved.
§15-1E-146. Short title. This article may be cited as the "Uniform State Code of Military Justice (USCMJ)."
§15-1E-147. Time of taking effect. This act takes effect July 1, 2010.
§15-1E-148. Supersedes existing state military justice codes. Upon enactment and the effective date, this law supersedes all existing statutes, ordinances, directives, rules, regulations, orders and other laws in the state covered by the subject matter of this law, and all such statutes, ordinances, directives, rules, regulations, orders and other laws are hereby repealed.
ARTICLE 1F. PRIVILEGES AND PROHIBITIONS. §15-1F-1. Leave of absence for public officials and employees for drills, parades, active duty, etc. (a) Any officer or employee of state, county or municipal government hired for permanent employment who is a member of the National Guard or armed forces reserve, is entitled to a military leave of absence from his or her respective office or employment without loss of pay, status or efficiency rating, on the days during which he or she is ordered, by properly designated authority, to be engaged in drills, inactive duty training, parades, funeral details, service schools or other duty, during business hours, field training, annual training or other fulltime National Guard duty pursuant to Title 10 or Title 32 of the United States Code, or active service of the state, for a maximum period of thirty working days, not to exceed two hundred forty hours in any one calendar year. (b) Any officer or employee of state, county or municipal government hired for permanent employment ordered or called to active duty for a mobilization or deployment under Title 10 of the United States Code or in support of a contingency operation as defined in 10 U.S.C. §101(a)(13) by the properly designated federal authority is entitled to a military leave of absence from his or her respective office or employment without loss of pay, status or efficiency rating for a maximum period of thirty working days, not to exceed two hundred forty hours for a single call to active duty: Provided, That an officer or employee of state, county or municipal government called to active duty who has not used all or some portion of the thirty working days of military leave of absence granted by subsection (a) of this section is entitled to add the number of unused days from that calendar year to the thirty working days, not to exceed two hundred forty hours granted by this subsection, up to a maximum of sixty days for a single call to active duty: Provided, however, That none of the unused days of military leave of absence granted by subsection (a) of this section may be carried over and used in the next calendar year. (c) The term "without loss of pay" means that the officer or employee shall continue to receive his or her normal salary or compensation, notwithstanding the fact that the officer or employee may have received other compensation from federal or state sources during the same period.
§15-1F-1a. Educational leave of absence for active duty. Whenever any member of the National Guard or other reserve component of the Armed Forces of the United States is called or ordered to active duty, other than active duty for training, including, in the case of members of the National Guard, active state duty, the educational institution in which the member is enrolled shall grant the member a military leave of absence from their education. Persons on military leave of absence from their educational institution shall be entitled, upon release from military duty, to be restored to the educational status they had attained prior to their being ordered to military duty without loss of academic credits earned, scholarships or grants awarded or tuition and other fees paid prior to the commencement of the military duty. It shall be the duty of the educational institution to refund tuition or fees paid or to credit the tuition and fees to the next semester or term after the termination of the educational military leave of absence at the option of the student. The provisions of this section shall not supercede federal laws, rules and regulations at the time of the military leave of absence.
§15-1F-1b. Tolling of the running of any licensure or registration requirement. The running of any licensure or registration requirement, including, but not limited to, the payment of any license or registration fees of a licensing board or commission of the state shall be tolled during the period of absence for active duty for any member of the National Guard or other reserve component of the armed services of the United States until sixty days after the return of the member from active duty: Provided, That the service member shall be granted a period of time equal to the period of active duty to fulfill any continuing education requirements needed for licensure or registration.
§15-1F-2. Suits against officers or persons acting under military authority. When a suit or proceeding shall be commenced in any court by any person, against any military officer of the state, for any act done by such officer in his official capacity in the discharge of any duty under this article, or against any person acting under the authority or order of any such officer, or by virtue of any warrant issued by him pursuant to law, the court shall, upon motion of the defendant, when it has been made to appear to the court by affidavit, or otherwise, that the act done is such as hereinbefore set forth, require the person prosecuting or instituting the suit or proceeding to file security for the payment of costs that may be incurred by the defendant therein. This security shall be by bond payable to the state, with surety to be approved by the clerk of the court, in a penalty equal to six times the costs incurred and likely to be incurred by the defendant, but in no case shall such bond be for a penalty less than $500. The court before whose clerk such bond is given, may, on motion by a defendant, give judgment for so much as he is entitled to by virtue of such bond under the provisions of this section. If such security for costs be not given within sixty days from the time the same is required by the court to be given, the suit or proceeding shall, by order of the court, be dismissed. In case any suit or proceeding shall be dismissed for failure to give security for costs, then the defendant shall recover three times the amount of the costs incurred by him In all such cases as are referred to in this section the defendant may make a general denial and give the special matter in evidence.
§15-1F-3. Change of venue of prosecutions or suits against members of National Guard. Any civil or military officer or member of the National Guard, or any person lawfully aiding them in the performance of any duty required under the provisions of this article, who is indicted or sued for any injury to person or property in endeavoring to perform such duty, shall have the right, and it is hereby made the duty of the court in which such indictment or suit is pending, upon the application of any person so indicted or sued, to remove the trial of the indictment or suit to some county free from exception.
§15-1F-4. Arrest of persons belonging to state military forces. No person belonging to the military forces of the state, while performing military duty under proper orders, shall be arrested on civil process, nor shall any person belonging to the military forces of the state, while performing military duty under proper orders, be arrested on criminal process, except upon process from a circuit or criminal court or a judge thereof in vacation.
§15-1F-5. Unlawful conversion of military property. Whoever shall secrete, sell or dispose of, or offer for sale, or purchase, knowing the same to be such, retain after proper demand is made, or in any manner pawn or pledge, any military property, which shall have been issued under the provisions of this article, shall be guilty of a misdemeanor, and, in addition to the punishment provided for misdemeanors in this article, shall forfeit to the state twice the amount or cost of the property so secreted, sold, disposed of, offered for sale, or purchased, retained after proper demand has been made, pawned or pledged.
§15-1F-6. Unlawful wearing of uniforms. Any person who shall wear any uniform or any device, strap, knot, or insignia of any design or character, used as a designation of grade, rank or officer, such as are by law or regulations, duly promulgated, prescribed for the use of the National Guard, or similar thereto, except members of the army or navy of the United States or the National Guard of this or any other state, members of associations wholly composed of soldiers honorably discharged from the service of the United States, or the members of the order of sons of veterans, shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not less than ten nor more than $100; and any member of the National Guard who shall, when not on duty, wear any such uniform or equipment issued by the state without the permission of his commanding officer, shall be subject to a fine of not more than $50.
§15-1F-7. Unlawful military organizations. (a) It is unlawful for any body of individuals other than the regularly organized National Guard or the troops of the United States, to associate themselves together as a military company or organization in this state. (b) Notwithstanding subsection (a) of this section, the Governor may grant permission to public or private schools of the state to organize themselves into companies of cadets, and may furnish the cadets, under proper restrictions, obsolete ordnance stores and equipment owned by the state that are not in use by the National Guard. (c) It is not a violation of this section for a group of individuals to associate as a military company or organization for historical, artistic or fictional performances; or, for an individual or group of individuals to drill, perform or parade at public ceremonies, including funerals. (d) A person who violates subsection (a) of this section, or belongs to or parades with a body of individuals with arms violating subsection (a) of this section, is guilty of a misdemeanor and, upon conviction, shall be fined not more than $100 or confined in jail for not more than six months.
§15-1F-8. Reemployment rights of members of the organized militia. Members of the organized militia in the active service of the state or another state shall be entitled to the same reemployment rights granted to members of the reserve components of the Armed Forces of the United States by applicable federal law, including rights protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), as amended, 38 U. S. C. §§ 4301-4334.
§15-1F-9. General penalty; jurisdiction under article. A person convicted of a crime declared by this article to be a misdemeanor shall, unless otherwise provided, be punished by a fine of not more than $500, or by imprisonment in the county jail for not more than one year, or by both. Any circuit, intermediate, criminal court, or justice of the peace shall have jurisdiction over offenses enumerated in this article.
§15-1F-10. Selective service registration and compliance. (a) A person may not enroll in a state-supported institution of postsecondary higher education unless he is in compliance with the Military Selective Service Act, 50 U. S. C. Appendix §451, et seq., and the amendments thereto. (b) A person may not receive a loan, grant, scholarship or other financial assistance for postsecondary higher education funded by state revenue, including federal funds or gifts and grants accepted by this state, or receive a student loan guaranteed by the state unless he is in compliance with the Military Selective Service Act. (c) No male person who has attained the age of eighteen years who fails to be in compliance with the Military Selective Service Act is eligible for employment by or service with the state or a political subdivision of the state, including all boards, commissions, departments, agencies, institutions and instrumentalities. (d) It is the duty of all officials having charge of and authority over the hiring of employees by the state or political subdivisions, and over state-supported institutions of postsecondary higher education, and over the granting of state supported financial assistance for postsecondary higher education as described in this section to assure themselves that applicants are in compliance with the Military Selective Service Act. (e) A person may not be denied a right, privilege or benefit under this section by reason of failure to present himself for and submit to the requirement to register pursuant to the Military Selective Service Act if: (1) The requirement for the person to so register has terminated or become inapplicable to the person; and (2) The person is or has already served in the Armed Forces or has a condition that would preclude acceptability for military service.
§15-1F-11. West Virginia Servicemembers Civil Relief Act. (a) This section may be cited as the >West Virginia Servicemembers Civil Relief Act' (b) A member of the West Virginia National Guard called to state active duty by the Governor for a period of thirty days or more, shall have all of the protections, rights or benefits that are afforded and may accrue to a person on federal active duty under the provisions of 50 U.S.C. App., §501, et seq. as amended by the Servicemembers Civil Relief Act, Pub. L. No. 108-189 (2003).
ARTICLE 1G. SERVICE MEDALS. §15-1G-1. The West Virginia distinguished service medal. The "West Virginia distinguished service medal" may be awarded: (a) To former or present Governors of the State of West Virginia as commanders in chief of the West Virginia National Guard; (b) To such officers and enlisted men in the West Virginia National Guard as may have, or may hereafter render conspicuous or distinguished service in the line of duty, or who have displayed, or may hereafter display, conspicuous courage and gallantry while on duty with the West Virginia National Guard; (c) To individuals serving in the West Virginia National Guard who are holders of congressional medals of honor, United States distinguished service medals, United States distinguished service cross or equivalent awards of the United States navy; (d) To West Virginians who served in the Armed Forces of the United States in time of war and who have rendered conspicuous or distinguished service in the line of duty; (e) To not more than two civilians in any one year who shall have rendered, in the judgment of the military board of the State of West Virginia, conspicuous or distinguished service to the West Virginia National Guard, the State of West Virginia or the United States of America. The West Virginia distinguished service medal may be awarded posthumously to the next of kin of any officer, enlisted man or civilian entitled thereto under the foregoing subdivisions.
§15-1G-2. West Virginia legion of merit. The "West Virginia legion of merit" may be awarded for exceptional meritorious service, achievement or bravery: (a) To present or former officers and enlisted members of the West Virginia National Guard; (b) To present or former members of active military components, National Guard members of other states and other reserve components; (c) To civilians who have rendered conspicuous or distinguished service to the West Virginia National Guard, the State of West Virginia or the United States of America.
§15-1G-3. Procedure for award of distinguished service medal and legion of merit. The military awards board hereinafter established shall recommend to the Governor the approval or disapproval of all nominations for the award of the distinguished service medal or the legion of merit. If the justification contained in a nomination for the distinguished service medal does not meet the criteria established for such award, the board may recommend in lieu thereof the approval of the legion of merit.
§15-1G-4. Other West Virginia awards and decorations. The Adjutant General is authorized to establish other West Virginia awards and decorations to recognize officers and members of the West Virginia National Guard or other individuals as may be deemed appropriate. Such awards and decorations will be established by the issuance of appropriate orders by the Adjutant General and furnished at the expense of the state. The Adjutant General shall establish procedures for the granting of such awards or decorations.
§15-1G-5. Precedence of medals. The order of precedence for wearing West Virginia medals is as follows: (1) West Virginia distinguished service medal; (2) West Virginia legion of merit; (3) Other West Virginia awards and decorations in the order of precedence as established by the Adjutant General.
§15-1G-6. Board of awards. The Governor, as commander in chief of the West Virginia National Guard, shall appoint a permanent board of awards to be known as the military awards board of the State of West Virginia to consist of three members, at least two of whom shall be members of the West Virginia National Guard on active duty. The term of office for these members shall be four years or until their successors are appointed. The members of this board shall receive no salary or other compensation for their services, but each member shall be allowed and paid for actual expenses in traveling and other personal expense incurred in the performance of their duty. The board shall select a secretary who shall make and keep a record of its proceedings, which record is to be lodged in the Adjutant General's office and is to be preserved therein as a part of the permanent military records of the State of West Virginia.
§15-1G-7. Design of medals. The military awards board of the State of West Virginia shall design, or have designed, the distinguished service medal, the legion of merit, and other West Virginia awards and decorations and shall submit the designs and bids thereon, together with its recommendations thereon, to the Governor for final approval.
§15-1G-8. Devices for the award of multiple West Virginia decorations. In the event any person shall render service or perform acts entitling such person to the award of a West Virginia decoration, and the award of such decoration has previously been made, the person shall, for each subsequent award be entitled to wear a bronze oak leaf cluster. A silver oak leaf cluster shall be used in lieu of five bronze oak leaf clusters.
§15-1G-9. Procurement of West Virginia decorations. The Adjutant General shall annually submit to the Legislature a request for an appropriation sufficient to cover the cost of all West Virginia decorations established in accordance with this article.
§15-1G-10. West Virginia veterans service decoration; West Virginia Service Cross. (a) In addition to any other medals or awards authorized under the provisions of this article, the following medals are authorized: (1) A West Virginia veterans service decoration may be awarded to any resident of West Virginia who served in any of the five federally recognized military services for a period at a time during which there was armed conflict. (2) A West Virginia Service Cross and ribbon bar, along with a certificate signed by the Governor and State Adjutant General, may be awarded to any veteran who meets the criteria set forth in subdivision (1) of this subsection, and who also was awarded a federal achievement medal, commendation medal, meritorious service medal or a medal for valor by one of the five federally recognized military services. (b) West Virginia National Guard members may also be authorized to receive and wear the medals and ribbons authorized under the provisions of this section in an order of precedence determined by the Adjutant General. (c) The Adjutant General may propose rules pursuant to article three, chapter twenty-nine-a of this code to implement the provisions of this section.
ARTICLE 1H. MORALE, WELFARE AND RECREATION FACILITIES. §15-1H-1. Definitions. As used in this article: (1) "Camp Dawson" means the state military reservation located near Kingwood, Preston County, West Virginia, and any training areas, ranges or facilities located on or about the reservation used for military purposes. (2) "Morale, welfare and recreation facility" means any post exchange, canteen, barber shop, fitness center, snack bar, transient housing, billeting operation, laundry or similar facility, the purpose of which is to enhance the morale and welfare of military personnel. (3) "Nonappropriated fund instrumentality" means an enterprise operated exclusively with funds derived from sales or user fees, which receives no legislative appropriations for its operations. (4) "Nonappropriated fund employee" means an employee of a nonappropriated fund instrumentality, who is not an employee of the state.
§15-1H-2. Morale, welfare and recreation facilities; nonappropriated fund instrumentalities. (a) The Adjutant General is authorized to establish morale, welfare and recreation facilities within the state as in his or her judgment may be necessary and proper for military purposes. (b) Notwithstanding any other provision of this code to the contrary, the Adjutant General is authorized to establish a nonappropriated fund instrumentality for the purpose of operating the morale, welfare and recreation facilities. (c) A nonappropriated fund instrumentality established under this section may: (1) Contract for goods and services; (2) Hire employees under terms and conditions as it may negotiate, subject only to applicable state and federal labor laws; (3) Establish a system of bookkeeping, accounting and auditing procedures for the proper handling of funds derived from its operations; and (4) Perform any other action necessary to establish a board, corporation or other entity for the purpose of operating the morale, welfare and recreation facilities. (d) A nonappropriated fund instrumentality established under this section is solely responsible for its operations. No debt of the nonappropriated fund instrumentality is a debt of the state. No action of the nonappropriated fund instrumentality is an action of the state, nor does it obligate the state in any manner.
§15-1H-3. Regulations. The Adjutant General shall promulgate regulations for the operation of morale, welfare and recreation facilities and any nonappropriated fund instrumentality established under this article.
§15-1H-4. Use of funds. All proceeds derived from the operation of the morale, welfare and recreation facilities within the state shall, after the payment of operating expenses, notwithstanding any provision of this code to the contrary, be used exclusively to benefit any morale, welfare and recreation facilities established pursuant to this section.
§15-1H-5. Sales to be tax exempt. Any sales of goods made by a canteen or snack bar facility on a state reservation or state training facility under the jurisdiction of the Adjutant General are exempt from the payment of state consumers sales taxes pursuant to the provisions of article fifteen, chapter eleven of this code.
§15-1H-6. Limitation on sales. Use of the morale, welfare and recreation facilities provided for in this article are limited to: (1) Active and reserve component members of the Armed Forces of the United States; (2) Persons retired from the Armed Forces of the United States; (3) Dependents of service members or retirees; (4) Civilian employees of the United States; and (5) Employees of the State of West Virginia.
ARTICLE 1I. THE CHILD PROTECTION ACT OF 2006. §15-1I-1. The Child Protection Act of 2006. This article and those other amendments and additions to this code established by this Act, enacted during the first extraordinary session of the West Virginia Legislature, two thousand six shall be known as "The Child Protection Act of 2006."
§15-1I-2. Legislative findings. (a) The purpose of "The Child Protection Act of 2006" is to put in place a series of programs, criminal law revisions and other reforms to provide and promote the ability of the children of this state to live their lives without being exposed and subjected to neglect and physical and sexual abuse. The targeted increases in terms of incarceration, enhanced treatment, post-release supervision and new approaches toward the state's child protection system will, in the aggregate, strengthen government's ability to address this most serious problem. The Legislature finds that the broad reaching measures encompassed in this Act will provide for greater intervention among and punishment and monitoring of individuals who create a risk to our children's safety and well-being. (b) The Legislature further finds that the following reforms implemented as part of this Act will provide protections to the children of this state and are all important to eliminate risks to children and are essential elements of "The Child Protection Act of 2006": (1) Creating a special unit in the State Police specializing in the investigation of child abuse and neglect -- section fifteen, article two, chapter fifteen of this code; (2) Modifying the Sex Offender Registration Act to ensure more effective registration, identification and monitoring of persons convicted of sexual offenses –- article twelve, chapter fifteen of this code; (3) Establishing the Child Abuse and Neglect Registry, requiring the registry to disclose information to certain state and local officials -– article thirteen, chapter fifteen of this code; (4) Providing for coded driver's licenses and nondriver identification cards to more easily identify sexually violent predators -– section three, article two, chapter seventeen-b of this code; (5) Prohibiting contractors and service providers convicted of certain offenses from accessing school grounds and providing for the release of criminal history information by the central abuse registry to county school boards -– section fifteen-c, article five, chapter eighteen of this code; (6) Establishing a task force to study the feasibility of constructing separate correctional facilities for the incarceration and treatment of sex offenders -– section twenty-two, article one, chapter twenty-five of this code; (7) Requiring the State Police and the Department of Health and Human Resources to maintain statewide child abuse and neglect statistical indexes of all convictions and allegations, respectively -– section fifteen, article two, chapter fifteen and section eleven, article six-a, chapter forty-nine of this code; (8) Providing for increased terms of incarceration for first degree sexual assault and first degree sexual abuse committed against children under the age of twelve -- sections three and seven of article eight-b, chapter sixty-one of this code; (9) Eliminating eligibility of certain sex offenders for probation, home incarceration and alternative sentences and providing for enhanced terms of incarceration for certain subsequent sex offenses committed by recidivist sex offenders -- sections nine-a and nine-b of article eight-b, chapter sixty-one of this code; (10) Providing for polygraph examinations for certain sex offenders on probation, parole or supervised release -- article eleven-d, chapter sixty-two of this code; (11) Providing for electronic monitoring of certain sex offenders on probation, parole and supervised release -– article eleven-d, chapter sixty-two of this code; (12) Establishing a task force to develop measures aimed at managing sexually violent predators released from confinement -- article eleven-e, chapter sixty-two of this code; (13) Making psychiatric evaluations a condition of probation eligibility for certain sex offenders –- section two, article twelve, chapter sixty-two of this code; (14) Authorizing the Department of Health and Human Resources to establish qualifications for sex offender treatment programs and counselors -- sections two and twenty-six, article twelve, chapter sixty-two of this code; (15) Providing for extended supervision of certain offenders and supervised release requirements for sexually violent offenders -– section twenty-six, article twelve, chapter sixtytwo of this code; and (16) Providing for prerelease risk assessments of certain sex offenders -- section twenty-seven, article twelve, chapter sixty-two of this code. (c) In addition, the Legislature finds that those enhanced terms of incarceration and post-conviction measures provided for in this Act which impact certain offenders convicted of sexual offenses against adults are necessary and appropriate to protect children from neglect and physical and sexual abuse given that: (1) Clinical research indicates that a substantial percentage of sexual offenders "cross over" among age groups in selecting their victims; (2) many of the risk factors prevalent among sex offenders that "cross over" (e.g., substance abuse, lack of empathy toward victim, inability to control inappropriate impulses, childhood abuse) also are prevalent among perpetrators of child abuse and neglect; and (3) enhanced terms of incarceration, post-conviction supervision, monitoring and treatment measures will enable the criminal justice system to identify and address those "cross over" offenders before they can victimize additional children.
ARTICLE 1J. THE WEST VIRGINIA MILITARY AUTHORITY ACT. §15–1J-1. Short title. This article shall be known and may be cited as the West Virginia Military Authority Act.
§15-1J-2. Legislative findings. The Legislature finds that the West Virginia National Guard is a unique entity that has a dual mission for both West Virginia and the United States. In this dual capacity, the West Virginia National Guard receives funds to administer programs, including the hiring of employees, that the federal government, including the Department of Defense, provides to the guard in support of specific activities for various federal agencies for national security and homeland security purposes. These programs fulfill specific agency purposes and necessarily require continued funding by the federal government. Additionally, the guard continues to receive federal funding to develop and maintain capabilities to house, refurbish, rebuild and maintain military equipment and conduct other test and operational activities to support national and homeland security objectives. These activities require the guard to enter into contracts and subcontracts for specialized technical services and hire persons who will be compensated, in whole or in part, with federal funds. It is further determined and declared that it is necessary for the guard to develop and implement a procedure for hiring and management of nonmilitary employees to support its specific missions.
§15-1J-3. Definitions. As used in this article, unless the content clearly indicates otherwise: (a) "Authority" means the West Virginia Military Authority. (b) "BRIM" means the West Virginia Board of Risk and Insurance Management. (c) "Guard" means West Virginia National Guard, including its army and air components. (d) "Employee" means any person who, within the at-will employment relationship, is hired to perform duties related to national security, homeland security and other militaryrelated or -sponsored programs. (e) "PEIA" means Public Employees Insurance Act. (f) "PERS" means Public Employees Retirement System.
§15-1J-4. Establishment and general powers of the authority. (a) The West Virginia Military Authority is hereby established to administer national security, homeland security and other military-related or sponsored programs. (b) The authority will be administered by the Adjutant General and the Adjutant General’s department. (c) Funds provided by the federal government and any state funds authorized by appropriation of the Legislature used as a required match to secure federal funding for programs administered by the authority pursuant to this section shall be administered by the Adjutant General subject to the provisions of article eleven, chapter four of this code. (d) Except as otherwise prohibited by statute, the authority, as a governmental instrumentality exercising public powers of the state, shall have and may exercise all powers necessary or appropriate to carry out the purpose of this article, including the authority to: (1) Execute cooperative agreements between the guard and the federal and/or state governments; (2) Contract on behalf of the guard with the federal government, its instrumentalities and agencies, any state, territory or the District of Columbia and its agencies and instrumentalities, municipalities, foreign governments, public bodies, private corporations, partnerships, associations and individuals; (3) Use funds administered by the authority pursuant to subsection (c) of this section for the maintenance, construction or reconstruction of capital repair and replacement items as necessary and approved by the authority; (4) Accept and use funds from the federal government, its instrumentalities and agencies, any state, territory or the District of Columbia and its agencies and instrumentalities, municipalities, foreign governments, public bodies, private corporations, partnerships, associations and individuals for the purposes of national security, homeland security and other military-related or -sponsored programs; (5) Procure insurance with state funds through BRIM covering property and other assets of the authority in amounts and from insurers that BRIM determines necessary; (6) Contract on behalf of the guard with the federal government, its instrumentalities and agencies, any state, territory or the District of Columbia and its agencies and instrumentalities, municipalities, foreign governments, public bodies, private corporations, partnerships, associations and individuals for specialized technical services at a rate commensurate with industry standards as determined by the Adjutant General to support specific activities related to national security, homeland security and other military-related programs; (7) Hire employees at an appropriate salary equivalent to a competitive wage rate; (8) Enroll employees in PERS, PEIA and workers’ compensation and unemployment programs, or their equivalents: Provided, That the authority, through the receipt of federal and/or state funds, pays the required employer contributions; (9) Cooperate with economic development agencies in efforts to promote the expansion of industrial, commercial and manufacturing in the state; (10) Develop a human resources division that will administer and manage its employees and receive state matching funds as necessary to ensure maximum federal funds are secured; (11) Due to the at-will employment relationship with the authority, its employees may not avail themselves of the state grievance procedure as set forth in article six-a, chapter twenty- nine of this code; and (12) Have the ability to secure all other bonding, insurance or other liability protections necessary for its employees to fulfill their duties and responsibilities.
§15-1J-5. Employees. (a) The authority shall have the power to hire, administer and manage employees necessary to fulfill its responsibilities. (1) All employees will be exempt from both the classified services category and the classified exempt services category as set forth in section four, article six, chapter twenty-nine of this code. (2) Employee positions are contingent on the receipt of the necessary federal and/or state funds. (3) Each employee hired shall be deemed an at-will employee who may be discharged or released from his or her respective position without cause or reason. (4) Employees will participate in the PEIA, PERS and workers' compensation and unemployment compensation programs, or their equivalents. Public safety-related positions will continue to require dual status membership as outlined in section twenty-six, article one-b, chapter fifteen of this code. (b) The Adjutant General will set appropriate salary rates for employees equivalent to a competitive wage rate necessary to support a specific mission. (c) Security guards and military firefighters hired by the authority under the provisions of this article will continue to have the same authority and must meet the requirements as set forth in section twenty-two, article one-b, chapter fifteen of this code and section twenty-six of said article.
ARTICLE 1K. CIVIL AIR PATROL. §15-1K-1. Legislative findings and intent. (a) The Legislature hereby makes the following findings: (1) The Civil Air Patrol is the congressionally chartered official auxiliary of the United States Air Force. It performs three congressionally assigned key missions: emergency services, which includes search and rescue, by air and ground, and disaster relief operations; aerospace education for youth and the general public; and cadet programs for teenage youth. In addition, the Civil Air Patrol is tasked with homeland security and other missions. (2) The Civil Air Patrol also performs nonauxiliary missions for various federal and state governmental and private agencies, such as the West Virginia Army and Air National Guard, State Division of Homeland Security and Emergency Management, the Division of Forestry, local law enforcement, the Federal Emergency Management Agency and the American Red Cross. (3) The West Virginia wing of the Civil Air Patrol, is organized, equipped, governed, administered and trained in accordance with the rules and regulations of the United States Air Force and the Civil Air Patrol. (4) The West Virginia wing of the Civil Air Patrol has air and ground assets located throughout the state, as well as highly trained aircrews, ground search crews and other mission support personnel who perform, as unpaid professionals, valuable emergency services missions for the citizens of West Virginia. Additionally, the West Virginia wing of the Civil Air Patrol, through its missions of aerospace education and cadet programs, is instrumental in developing West Virginia’s youth to be the leaders of the future. (b) In light of the invaluable services provided by the West Virginia wing of the Civil Air Patrol to the state, it is the intent of the Legislature for the state and the Adjutant General to provide administrative, financial and other support to the West Virginia wing of the Civil Air Patrol so that it can continue to train and equip itself and its unpaid personnel to perform these valuable missions for the citizens of the state. (c) It is also the intent of the Legislature to create protections for employees who are members of the Civil Air Patrol and who train for, and respond to, emergency services missions.
§15-1K-2. Definitions. As used in this article: (1) “Civil Air Patrol leave” means leave requested by an employee who: (A) Is a volunteer member of the civilian auxiliary of the United States Air Force known as the Civil Air Patrol; and (B) Has been authorized by the United States Air Force, the Governor or a department, division, agency or political subdivision of the state to respond to or train for an emergency mission. (2) “Emergency mission” means an Air Force assigned mission under which the West Virginia wing of the Civil Air Patrol conducts operations. (3) “Employee” means any individual who performs services for, or under the control of, a provider of wages or remuneration. (4) “Employee benefits” means all benefits other than wages given by an employer. (5) “Employer” means any person or entity that employs more than fifteen employees.
§15-1K-3. Adjutant General administration; expenses of Civil Air Patrol. (a) Due to the nature of its congressionally assigned key missions and nonassigned missions, the West Virginia wing of the Civil Air Patrol shall be administered by the Adjutant General and the Adjutant General’s department in accordance with applicable state, federal and Civil Air Patrol regulations. (b) The Adjutant General, in addition to all other powers and functions authorized by law, may expend state funds: (1) For operational missions or other objectives related to national security, homeland security, emergency response, disaster relief or other similar missions; (2) For educational and training purposes of the Civil Air Patrol, including, but not limited to, the purchase of Civil Air Patrol aviation, homeland security and emergency services education training aid books, materials and equipment; (3) To defray maintenance, repair and replacement costs of Civil Air Patrol aircraft, motor vehicles and other homeland security and emergency services equipment; (4) To purchase and obtain supplies and equipment for the Civil Air Patrol; and (5) To maintain the communications network for the Civil Air Patrol and to integrate it with other state communications networks. (c) Funds specifically appropriated by the Legislature for the purposes specified in subsection (b) of this section may be expended by the Adjutant General and shall be expended for no other purposes.
§15-1K-4. Nondiscrimination by employer against Civil Air Patrol members. (a) An employer may not discriminate against or discharge from employment an employee who has been employed for a minimum of ninety days and is a member of the Civil Air Patrol because of membership in the Civil Air Patrol. (b) An employer may not hinder or prevent an employee who has been employed for a minimum of ninety days from performing service as part of the West Virginia wing of the Civil Air Patrol during an emergency mission or training if the member is entitled to leave under this article.
§15-1K-5. Employer to provide leave. (a) An employer shall provide up to a maximum of ten days per calendar year of unpaid Civil Air Patrol leave to an employee training for an emergency mission of the West Virginia wing of the Civil Air Patrol. (b) An employer shall provide up to a maximum of thirty days per calendar year of unpaid Civil Air Patrol leave to an employee responding to an emergency mission of the West Virginia wing of the Civil Air Patrol. (c) An employee shall give the employer: (1) At least fourteen days’ notice of the intended dates of the beginning and end of leave together with an estimate of the amount of time needed to complete training; and (2) As much notice as possible of the intended dates of the beginning and end of leave together with an estimate of the amount of time needed to complete an emergency mission. (d) The employee shall report to the employer necessary changes in the time required to complete the training or mission. (e) The employer may require verification of the eligibility of the employee for the Civil Air Patrol leave requested or taken. (f) If the employee fails to provide the required verification, the employer may deny the Civil Air Patrol leave. (g) An employee taking leave under this article is not required to exhaust all available leave or time-off benefits before using Civil Air Patrol leave. (h) This article shall not prevent an employer from providing an employee paid leave.
§15-1K-6. Return to work by employee. (a) When the employee returns to work, the employer shall restore the employee to the position held when the leave began or to a position with equivalent seniority status, benefits, pay and conditions of employment. (b) An employer may decline to restore an employee as required in this article because of circumstances unrelated to the provisions of this article. (c) An employer and an employee may negotiate for the employer to pay for the benefits of the employee during the leave, but the employer is not required to continue or maintain employee benefits for any employee eligible for leave under this article where the employee would not be otherwise eligible for any benefit under the policies of the employer or the content of any employee benefit plan which regulates eligibility for benefits.
§15-1K-7. Accrued benefits not lost; leave not to be used with other leave; rights and obligations under collective bargaining or other agreements. (a) The use of Civil Air Patrol leave under this article may not result in the loss of an employee benefit accrued before the first date of leave. (b) An employee using leave under any other provision of state or federal law may not concurrently use leave granted under this article. (c) This article does not affect the obligation of an employer to comply with a collective bargaining agreement or an employee benefit plan that provides greater leave rights to employees than the rights provided under this article. (d) The grant of leave under this article may not be diminished by a collective bargaining agreement or an employee benefit plan entered into on or after July 1, 2017. (e) This article does not affect or diminish the contract rights or seniority status of an employee not entitled to Civil Air Patrol leave.
§15-1K-8. Certain actions by employer prohibited. (a) An employer may not interfere with the use of Civil Air Patrol leave allowed under this article. (b) An employer may not discharge, fine, suspend, expel, discipline or in any other manner discriminate against an employee who is a member of the Civil Air Patrol because that employee complies with the provisions of this article or opposes a practice not in compliance with this article.
§15-1K-9. Action to enforce article authorized. (a) An employee may bring a civil action in the appropriate circuit court to enforce this article. (b) The court may enjoin an act or practice that violates this article and may order equitable relief to redress the violation or to enforce this article, including the recovery of lost wages incurred as a result of any violation under this article. No other monetary damages may be awarded or recovered.
ARTICLE 2. WEST VIRGINIA STATE POLICE. §15-2-1. Short title. This article shall be known and may be cited as the "West Virginia Department of Public Safety Reorganization Act."
§15-2-1a. Repealed. Acts, 1990 Reg. Sess., Ch. 157.
§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 $10,000, 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.
§15-2-3. State Police structure; how established; training; special revenue account. (a) The superintendent shall create, appoint and equip the State Police which shall consist of the number of troops, districts and detachments required for the proper administration of the State Police. Each troop, district or detachment shall be composed of the number of officers and members the superintendent determines are necessary to meet operational needs and are required for the efficient operation of the State Police. The superintendent shall establish the general organizational structure of the State Police by interpretive rule in accordance with the provisions of article three, chapter twenty-nine-a of this code. The superintendent shall provide adequate facilities for the training of all members of the State Police and shall prescribe basic training requirements for newly enlisted members. He or she shall also provide advanced or in-service training, from time to time, for all members of the State Police. The superintendent shall hold entry-level training classes for other law-enforcement officers in the state without cost to those officers, except actual expenses for food, lodging and school supplies. The superintendent may hold advanced levels of training classes for other law-enforcement officers and those individuals in law enforcement-related professions for a reasonable daily fee per student not to exceed $100. The superintendent may also allow the use of classrooms, firearms training facilities and other training venues by other agencies or entities for a daily fee not to exceed $100 per day, per venue. (b) There is hereby created in the State Treasury a special revenue account, which shall be an interest bearing account, to be known as the Academy Training and Professional Development Fund. The special revenue account shall consist of training fees, any appropriations that may be made by the Legislature, income from the investment of moneys held in the special revenue account and all other sums available for deposit to the special revenue account from any source, public or private. No expenditures, for purposes of this section, are authorized from collections except in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions set forth in article two, chapter eleven-b of this code. Any balance remaining in the special revenue account at the end of any state fiscal year does not revert to the General Revenue Fund but remains in the special revenue account and shall be used solely in a manner consistent with this article. The superintendent is authorized to expend funds from the account to offset operational and training costs; for building maintenance and repair; for purchases and for equipment repair or replacement for the West Virginia State Police Academy; and to defray necessary expenses incidental to those and other activities associated with law-enforcement training. (c) There is hereby created in the State Treasury a special revenue account, which is an interest bearing account, to be known as the State Police 100th Anniversary Fund. The special revenue account shall consist of merchandise sales, any appropriations that may be made by the Legislature, income from the investment of moneys held in the special revenue account and all other sums available for deposit to the special revenue account from any source, public or private. No expenditures for purposes of this section are authorized from collections except in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions set forth in article two, chapter eleven-b of this code. Any balance remaining in the special revenue account at the end of any state fiscal year does not revert to the General Revenue Fund but remains in the special revenue account and shall be used solely in a manner consistent with this article. The superintendent is authorized to expend funds from the account to offset costs for the 100th anniversary celebration; for purchasing 100th anniversary commemorative merchandise, equipment and vehicles; and to defray necessary expenses incidental to those and other activities associated with the 100th anniversary of the West Virginia State Police. This fund expires on December 31, 2019, and remaining funds shall be transferred to the Academy Training and Professional Development Fund. (d) The superintendent may hold training classes for certification to access and use the West Virginia Automated Police Network for a reasonable daily fee per student not to exceed $100. (e) There is hereby created in the State Treasury a special revenue account, which is an interest bearing account, to be known as the West Virginia State Police Criminal Justice Information Services Fund. The special revenue account shall consist of: Fees collected for training and certification for access to the West Virginia Automated Police Network system; any appropriations that may be made by the Legislature; income from the investment of moneys held in the special revenue account; and all other sums available for deposit to the special revenue account from any source, public or private. Any balance remaining in the special revenue account at the end of any state fiscal year does not revert to the General Revenue Fund but remains in the special revenue account and may be used solely in a manner consistent with this article. The superintendent is authorized to expend funds from the account for the following purposes: To offset operational and training costs; for building maintenance and repair; for purchases and for equipment repair; personal services; software; other associated maintenance costs; and to defray necessary expenses incidental to those and other activities associated with the communications section of the West Virginia State Police.
§15-2-4. Appointment of commissioned officers, noncommissioned officers, other members; temporary and permanent positions. (a) The superintendent shall appoint, from the enlisted membership of the State Police, a deputy superintendent who shall hold the rank of lieutenant colonel and be next in authority to the superintendent. The superintendent shall appoint, from the enlisted membership of the State Police, the number of other officers and members he or she considers necessary to operate and maintain the executive offices, training school and forensic laboratory; and to keep records relating to crimes and criminals, coordinate traffic safety activities, maintain a system of supplies and accounting and perform other necessary services. (b) The ranks within the membership of the State Police shall be colonel, lieutenant colonel, major, captain, first lieutenant, second lieutenant, first sergeant, sergeant, corporal, trooper first class, senior trooper, trooper or cadet trooper. Each member while in uniform shall wear the insignia of rank as provided by law and written State Police policies. Members assigned to the forensic laboratory shall hold the title of trooper, be classified as criminalists and wear the insignia of classification as provided by written State Police policies. The superintendent may appoint from the membership of the State Police nineteen principal supervisors who shall receive the compensation and hold the temporary rank of lieutenant colonel, major or captain at the will and pleasure of the superintendent. The superintendent may also appoint from the membership of the executive protection section of the State Police two additional supervisors who shall receive the compensation and hold the temporary rank of first lieutenant and serve at the will and pleasure of the superintendent. Appointments are exempt from any eligibility requirements established by the career progression system: Provided, That any member appointed from within the executive protection section of the State Police to the temporary rank of first lieutenant must have completed a minimum of two years service within the executive protection section prior to becoming eligible for such appointment. Any person appointed to a temporary rank under the provisions of this article remains eligible for promotion or reclassification under the provisions of the career progression system if his or her permanent rank is below that of first lieutenant. Upon the termination of a temporary appointment by the superintendent, the member may not be reduced to a rank or classification below his or her permanent rank or classification, unless the reduction results from disciplinary action, and remains eligible for subsequent appointment to a temporary rank.
§15-2-5. Career progression system; salaries; exclusion from wages and hour law, with supplemental payment; bond; leave time for members called to duty in guard or reserves. (a) The superintendent shall establish within the West Virginia State Police a system to provide for: The promotion of members to the supervisory ranks of sergeant, first sergeant, second lieutenant and first lieutenant; the classification of nonsupervisory members within the field operations force to the ranks of trooper, senior trooper, trooper first class or corporal; the classification of members assigned to the forensic laboratory as criminalist I-VIII; and the temporary reclassification of members assigned to administrative duties as administrative support specialist I-VIII. (b) The superintendent may propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code for the purpose of ensuring consistency, predictability and independent review of any system developed under the provisions of this section. (c) The superintendent shall provide to each member a written manual governing any system established under the provisions of this section and specific procedures shall be identified for the evaluation and testing of members for promotion or reclassification and the subsequent placement of any members on a promotional eligibility or reclassification recommendation list. (d) Beginning on July 1, 2011, members shall receive annual salaries payable at least twice per month as follows: ANNUAL SALARY SCHEDULE (BASE PAY) SUPERVISORY AND NONSUPERVISORY RANKS Cadet During Training $ 33,994 Cadet Trooper After Training $ 41,258 Trooper Second Year 42,266 Trooper Third Year 42,649 Senior Trooper 43,048 Trooper First Class 43,654 Corporal 44,260 Sergeant 48,561 First Sergeant 50,712 Second Lieutenant 52,862 First Lieutenant 55,013 Captain 57,164 Major 59,314 Lieutenant Colonel 61,465 ANNUAL SALARY SCHEDULE (BASE PAY) ADMINISTRATION SUPPORT SPECIALIST CLASSIFICATION I 42,266 II 43,048 III 43,654 IV 44,260 V 48,561 VI 50,712 VII 52,862 VIII 55,013 ANNUAL SALARY SCHEDULE (BASE PAY) CRIMINALIST CLASSIFICATION I 42,266 II 43,048 III 43,654 IV 44,260 V 48,561 VI 50,712 VII 52,862 VIII 55,013 Each member of the West Virginia State Police whose salary is fixed and specified in this annual salary schedule is entitled to the length of service increases set forth in subsection (e) of this section and supplemental pay as provided in subsection (g) of this section. (e) Each member of the West Virginia State Police whose salary is fixed and specified pursuant to this section shall receive, and is entitled to, an increase in salary over that set forth in subsection (d) of this section for grade in rank, based on length of service, including that service served before and after the effective date of this section with the West Virginia State Police as follows: Beginning on January 1, 2015 and continuing thereafter, at the end of two years of service with the West Virginia State Police, the member shall receive a salary increase of $500 to be effective during his or her next year of service and a like increase at yearly intervals thereafter, with the increases to be cumulative. (f) In applying the salary schedules set forth in this section where salary increases are provided for length of service, members of the West Virginia State Police in service at the time the schedules become effective shall be given credit for prior service and shall be paid the salaries the same length of service entitles them to receive under the provisions of this section. (g) The Legislature finds and declares that because of the unique duties of members of the West Virginia State Police, it is not appropriate to apply the provisions of state wage and hour laws to them. Accordingly, members of the West Virginia State Police are excluded from the provisions of state wage and hour law. This express exclusion shall not be construed as any indication that the members were or were not covered by the wage and hour law prior to this exclusion. In lieu of any overtime pay they might otherwise have received under the wage and hour law, and in addition to their salaries and increases for length of service, members who have completed basic training and who are exempt from federal Fair Labor Standards Act guidelines may receive supplemental pay as provided in this section. The authority of the superintendent to propose a legislative rule or amendment thereto for promulgation in accordance with article three, chapter twenty-nine-a of this code to establish the number of hours which constitute the standard pay period for the members of the West Virginia State Police is hereby continued. The rule shall further establish, on a graduated hourly basis, the criteria for receipt of a portion or all of supplemental payment when hours are worked in excess of the standard pay period. The superintendent shall certify at least twice per month to the West Virginia State Police’s payroll officer the names of those members who have worked in excess of the standard pay period and the amount of their entitlement to supplemental payment. The supplemental payment may not exceed $200 per pay period. The superintendent and civilian employees of the West Virginia State Police are not eligible for any supplemental payments. (h) Each member of the West Virginia State Police, except the superintendent and civilian employees, shall execute, before entering upon the discharge of his or her duties, a bond with security in the sum of $5,000 payable to the State of West Virginia, conditioned upon the faithful performance of his or her duties, and the bond shall be approved as to form by the Attorney General and as to sufficiency by the Governor. (i) In consideration for compensation paid by the West Virginia State Police to its members during those members’ participation in the West Virginia State Police Cadet Training Program pursuant to section eight, article twenty-nine, chapter thirty of this code, the West Virginia State Police may require of its members by written agreement entered into with each of them in advance of such participation in the program that, if a member should voluntarily discontinue employment any time within one year immediately following completion of the training program, he or she shall be obligated to pay to the West Virginia State Police a pro rata portion of such compensation equal to that part of such year which the member has chosen not to remain in the employ of the West Virginia State Police. (j) Any member of the West Virginia State Police who is called to perform active duty training or inactive duty training in the National Guard or any reserve component of the armed forces of the United States annually shall be granted, upon request, leave time not to exceed thirty calendar days for the purpose of performing the active duty training or inactive duty training and the time granted may not be deducted from any leave accumulated as a member of the West Virginia State Police.
§15-2-6. Authority to make rules for grievance procedure. The superintendent shall have continuing authority to propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code, relating to a grievance procedure for sworn members of the State Police. At a minimum, the rule shall provide a process for filing and resolving grievances at the lowest possible level in a timely manner, providing for representation, taking evidence at each level, establishing a hearing procedure, providing for appellate review, allocating costs and authorizing attorney fees to a grievant who prevails on appeal.
§15-2-7. Cadet selection board; qualifications for and appointment to membership in State Police; civilian employees; forensic laboratory employees; salaries. (a) The superintendent shall establish within the West Virginia State Police a cadet selection board which shall be representative of commissioned and noncommissioned officers within the State Police. (b) The superintendent shall appoint a member to the position of trooper from among the top three names on the current list of eligible applicants established by the cadet selection board. (c) Preference in making appointments shall be given whenever possible to honorably discharged members of the armed forces of the United States and to residents of West Virginia. Each applicant for appointment shall be a person not less than twenty-one years of age nor more than thirty-nine years of age, of sound constitution and good moral character and is required to pass any mental and physical examination and meet other requirements as provided in rules promulgated by the cadet selection board: Provided, That a former member may, at the discretion of the superintendent, be reenlisted. (d) No person may be barred from becoming a member of the State Police because of his or her religious or political convictions. (e) The superintendent shall adhere to the principles of equal employment opportunity set forth in article eleven, chapter five of this code and shall take positive steps to encourage applications for State Police membership from females and minority groups within the state. An annual report shall be filed with the Legislature on or before January 1 of each year by the superintendent which includes a summary of the efforts and the effectiveness of those efforts intended to recruit females, African-Americans and other minorities into the ranks of the State Police. (f) Except for the superintendent, no person may be appointed or enlisted to membership in the State Police at a grade or rank above the grade of trooper. (g) The superintendent shall appoint civilian employees as are necessary and all employees may be included in the classified service of the civil service system except those in positions exempt under the provisions of article six, chapter twenty-nine of this code. (h) Effective July 1, 2001, through June 30, 2014, civilian employees with a minimum of five years' service shall receive a salary increase equal to $100 a year for each year of service as a civilian employee. Every three years thereafter, civilian employees who have five or more years of service shall receive an annual salary increase of $300. The increases in salary provided by this subsection are in addition to any other increases to which the civilian employees might otherwise be entitled. After June 30, 2014, the provisions of this subsection are not operative. (i) After June 30, 2014, West Virginia State Police civilian employees with a minimum of one year service shall receive an annual longevity salary increase equal to $500. The increases in salary provided by this subsection are in addition to any other increases to which the civilian employees might otherwise be entitled. (j) Effective July 1, 2014, all current West Virginia State Police Forensic Laboratory analysts, directors and evidence technicians shall receive a one-time, across-the-board salary increase equal to twenty percent of their current salary. (k) On or before January 1, 2018, the Director of the West Virginia State Police Forensic Laboratory shall submit a report to the Joint Committee on Government and Finance detailing the West Virginia State Police Forensic Laboratory's ability to retain employees.
§15-2-8. Chaplains. The superintendent may also appoint for each company not more than two chaplains, residing within the State of West Virginia, who shall serve without pay, and who may not be required to perform any duties of members of the department, nor shall any bond be required. The superintendent is authorized to furnish each such chaplain one official uniform, with proper chaplain insignia, to be worn at any ceremonial occasion conducted officially by the department where the presence of a member of the clergy is customary. Such chaplains may be reimbursed by the superintendent for all reasonable and necessary expenses actually incurred in attending such ceremonies.
§15-2-9. State Police Voluntary Contribution Fund. (a) The Legislature finds that from the year 1951 to 2003, employees of the West Virginia State Police or its predecessor agencies have operated a voluntary contribution fund. Upon the death of a member or employee of the West Virginia State Police who, upon his or her death, was a member of the contribution fund, active members and employees of the West Virginia State Police who have voluntarily chosen to be members of the fund have been permitted, as an expression of respect and gratitude for the contributions and service of the deceased member in protecting the public, to donate small financial contributions to a designated beneficiary of the deceased member. The contributions were deposited into the contribution fund and the disbursements were made from the fund. The Legislature further finds, upon the reports of the Legislative Auditor, that over the years, without statutory authority to do so, administrators of the West Virginia State Police and its predecessor agencies assumed control of the administration of the contribution fund, performing or directing the administrative functions necessary to receive contributions to and disbursements from the contribution fund. The Legislature further finds that the State of West Virginia had not established the contribution fund or any similar benefit plan for the members and employees of the West Virginia State Police or its predecessor agencies, nor approved the same as an official state benefit program or plan in any manner whatsoever. In the absence of the establishment or approval of such a program or plan by the Legislature, the exercise of administrative powers for these purposes is inappropriate. The Legislature further finds that the contribution fund is not a state program, but a private activity to which individual employees of the West Virginia State Police have committed state time and resources. The Legislature further finds that the contributions and service of deceased members and employees of the West Virginia State Police merit sincere, dignified and personal voluntary expressions of respect and gratitude from fellow members and employees of the deceased. The Legislature further finds that the continuance of the contribution fund or similar benefit plan for the purposes of facilitating those personal voluntary expressions of respect and gratitude may be appropriate under certain circumstances. It is therefore the intent of the Legislature to authorize the limited use of staff and other resources incidental to the continued administration of the private contribution fund in accordance with the provisions of this section. (b) The limited use of State Police staff time, postage, duplicating and incidental resources is authorized in the continued administration of the contribution fund for the purpose of facilitating contributions and disbursements from the fund if the following conditions have been met: (1) The superintendent has provided each member and employee of the West Virginia State Police a copy of this section and a statement in writing that clearly advises the member or employee that the contribution fund is a private activity established and maintained by members and employees of the West Virginia State Police in their private capacity with limited administration by the West Virginia State Police and is not in any manner a benefit or other plan provided by or on behalf of the State of West Virginia and that participation in the fund or plan is not required, but is only permitted if the member or employee elects to participate on a voluntary basis with no obligation to give nor opportunity for coerced participation and that the purpose of the fund is to facilitate participating members' expressions of admiration, appreciation and bereavement to the survivors of deceased members; (2) All rosters, records and accounts of the contribution fund are available for public inspection and audit; and (3) State Police administration is consistent with all applicable federal and state tax requirements. (c) Membership in the State Police Contribution Fund is voluntary. On or before July 31, 2006, members or employees hired between January 1, 2003, and the effective date of this section may elect to participate in the fund, and within five days of employment or reemployment with the West Virginia State Police, a member or employee may elect to participate in the fund: Provided, That any member of the original contribution fund in good standing upon the effective date of this section shall be presumed to be a member of the contribution fund. A retired member may maintain membership in the fund. A member may terminate membership in the fund at any time, by written notice to the superintendent, or by ceasing to make contributions to the fund. Upon the death of a member of the fund, the superintendent is authorized to collect a contribution not to exceed the sum of $5 from all personnel participating in the fund, payable to a designated beneficiary of the deceased member. To aid administrative efficiency and ease the burden of participation, the superintendent may collect funds prospectively to cover an estimated number of deaths in a given period: Provided, That any such remaining funds credited to a deceased member shall be returned to the member's designated beneficiary. (d) Use of coercion in an attempt to influence a West Virginia State Police officer's or employee's election to participate in the contribution fund is prohibited and grounds for dismissal from employment. (e) The superintendent is authorized to establish and maintain a nongovernmental bank account established by agreement with a bank within the state to receive contributions to and make disbursements from the fund. These receipts are not to be deposited or held in the state Treasury. (f) The superintendent shall verify any death of a member of the fund and authorize the dissemination of a notice of the death to members of the fund. The superintendent shall use the most cost efficient means of communication available in making these notifications. (g) The superintendent is authorized to develop a written internal department policy for the operation of the contribution fund, which may include terms and conditions of membership and the development of any necessary forms or agreements for enrollment in the fund and the designation of a beneficiary.
§15-2-10. Uniforms; authorized equipment, weapons and supplies; local headquarters; quarters for members; life insurance; medical and hospital fees for injuries and illnesses of members incurred in line of duty. (a) The standard uniform to be used by the West Virginia State Police after the effective date of this article shall be as follows: Forestry green blouse with West Virginia State Police emblem on sleeve; black shoulder strap one-inch black stripe around sleeve, four inches from end of sleeve; forestry green breeches with one-inch black stripe down the side; trousers (slacks) with one-inch black stripe down the side for officers and clerks regularly enlisted in the State Police; forestry green shirts with West Virginia State Police emblem on sleeve; black shoulder straps; forestry green mackinaw with West Virginia State Police emblem on sleeve; black shoulder straps; one-inch black stripe around sleeve four inches from end of sleeve; campaign hat of olive drab color; black Sam Browne belt with holster; black leggings and shoes; the officer’s uniform will have one and one-quarter inch black stripe around the sleeve of blouse and mackinaw four inches from end of sleeve circumposed with one-half inch gold braid, also black collars on blouse, with two silver shoulder bars for captains, one silver shoulder bar for first lieutenant, one gold shoulder bar for second lieutenant. For noncommissioned officers the uniform blouse and shirt will have thereon black chevrons of the appropriate rank. (b) The superintendent shall establish the weapons and enforcement equipment which are authorized for use by members of the State Police and shall provide for periodic inspection of the weapons and equipment. He or she shall provide for the discipline of members using other than authorized weapons and enforcement equipment. (c) The superintendent shall provide the members of the State Police with suitable arms and weapons and, when he or she considers it necessary, with suitably equipped automobiles, motorcycles, watercraft, airplanes and other means of conveyance to be used by the West Virginia State Police, the Governor and other officers and executives in the discretion of the Governor, in times of flood, disaster and other emergencies, for traffic study and control, criminal and safety work and in other matters of official business. He or she shall also provide the standard uniforms for all members of the State Police, for officers, noncommissioned officers and troopers provided for in this section. All uniforms and all arms, weapons and other property furnished the members of the State Police by the State of West Virginia are and remain the property of the state. (d) The superintendent may purchase and maintain on behalf of members group life insurance not to exceed the amount of $5,000 on behalf of each member. (e) The superintendent may contract and furnish at State Police expense medical and hospital services for treatment of illness or injury of a member which shall be determined by the superintendent to have been incurred by the member while engaged in the performance of duty and from causes beyond control of the members. Notwithstanding any other provision of this code, the superintendent has the right of subrogation in any civil action or settlement brought by or on behalf of a member in relation to any act by another which results in the illness, injury or death of a member. To this end, the superintendent may initiate an action on behalf of the State Police in order to recover the costs incurred in providing medical and hospital services for the treatment of a member resulting from injury or illness originating in the performance of official duties. This subsection shall not affect the power of a court to apply ordinary equitable defenses to the right of subrogation. The superintendent may also consult with the West Virginia Insurance Commissioner in an effort to defray the cost of medical and hospital services. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule in use by the West Virginia Insurance Commissioner. Third-party reimbursements received by the superintendent after the expiration of the fiscal year in which the injury, illness or death occurred will be deposited to a nonexpiring special revenue account. Funds deposited to this account may be used solely for defraying the costs of medical or hospital services rendered to any sworn members as a direct result of an illness, injury or death resulting from the performance of official duties. (f) The superintendent shall establish and maintain local headquarters at those places in West Virginia that are in his or her judgment suitable and proper to render the West Virginia State Police most efficient for the purpose of preserving the peace, protecting property, preventing crime, apprehending criminals and carrying into effect all other provisions of this article. The superintendent shall provide, by acquisition, lease or otherwise, for local headquarters, for housing and quarters for the accommodation of the members of the West Virginia State Police, and for any other facilities necessary or useful for the effective operation of the West Virginia State Police and shall provide all equipment and supplies necessary for the members of the West Virginia State Police to perform their duties.
§15-2-10a. Duty to return assigned items; superintendent's right of setoff. (a) Whenever any member of the department of public safety retires, resigns or is terminated from employment, he or she shall surrender, in good condition, considering reasonable wear and tear from proper use, all items of equipment and clothing assigned to such member as set forth in section ten of this article: Provided, That this section shall not apply to any member awarded his or her service revolver pursuant to the provisions of section forty-three of this article. (b) Notwithstanding any provision of this code to the contrary, the superintendent of the department of public safety shall have a setoff against any West Virginia state police retirement benefits, salary owed, sick leave benefits or vacation day benefits owed such retired, resigning or terminated member in an amount equal to the value of any equipment and clothing not returned. Notwithstanding the fact that a retired, resigning or terminated member is no longer employed by the department of public safety, the member may file a grievance for the sole purpose of protesting the application of the setoff. Such a grievance shall be processed, considered and decided pursuant to the provisions of section six of this article and rules promulgated thereunder. Prior to applying any setoff under this subsection, the superintendent will notify the retired, resigning or terminated member of his or her opportunity to file a grievance.
§15-2-11. Territorial jurisdiction. The jurisdiction of the department shall extend anywhere in the State of West Virginia.
§15-2-12. Mission of the State Police; powers of superintendent, officers and members; patrol of turnpike. (a) The West Virginia State Police shall have the mission of statewide enforcement of criminal and traffic laws with emphasis on providing basic enforcement and citizen protection from criminal depredation throughout the state and maintaining the safety of the state's public streets, roads and highways. (b) The superintendent and each of the officers and members of the division are hereby empowered: (1) To make arrests anywhere within the state of any persons charged with the violation of any law of this state, or of the United States, and when a witness to the perpetration of any offense or crime, or to the violation of any law of this state, or of the United States, to make arrests without warrant; to arrest and detain any persons suspected of the commission of any felony or misdemeanor whenever a complaint is made and a warrant is issued thereon for the arrest, and the person arrested shall be immediately brought before the proper tribunal for examination and trial in the county where the offense for which the arrest has been made was committed; (2) To serve criminal process issued by any court or magistrate anywhere within this state: Provided, That they may not serve civil process; and (3) To cooperate with local authorities in detecting crime and in apprehending any person or persons engaged in or suspected of the commission of any crime, misdemeanor or offense against the law of this state, or of the United States, or of any ordinance of any municipality in this state; and to take affidavits in connection with any application to the Division of Highways, Division of Motor Vehicles and of West Virginia State Police for any license, permit or certificate that may be lawfully issued by these divisions of state government. (c) Members of the West Virginia State Police are hereby designated as forest patrolmen and natural resources police officers throughout the state to do and perform any duties and exercise any powers of forest patrolmen and natural resources police officers, and may apprehend and bring before any court or magistrate having jurisdiction of these matters, anyone violating any of the provisions of chapters twenty, sixty and sixty-one of this code. The West Virginia State Police is at any time subject to the call of the West Virginia Alcohol Beverage Control Commissioner to aid in apprehending any person violating any of the provisions of chapter sixty of this code. They shall serve and execute warrants for the arrest of any person and warrants for the search of any premises issued by any properly constituted authority, and shall exercise all of the powers conferred by law upon a sheriff. They may not serve any civil process or exercise any of the powers of an officer in civil matters. (d) Any member of the West Virginia State Police knowing or having reason to believe that any person has violated the law may make complaint in writing before any court or officer having jurisdiction and procure a warrant for the offender, execute the warrant and bring the person before the proper tribunal having jurisdiction. The member shall make return on all warrants to the tribunals and his or her official title shall be "Member of the West Virginia State Police". Members of the West Virginia State Police may execute any summons or process issued by any tribunal having jurisdiction requiring the attendance of any person as a witness before the tribunal and make return thereon as provided by law. Any return by a member of the West Virginia State Police showing the manner of executing the warrant or process has the same force and effect as if made by a sheriff. (e) Each member of the West Virginia State Police, when called by the sheriff of any county, or when directed by the Governor by proclamation, has full power and authority within the county, or within the territory defined by the Governor, to direct and command absolutely the assistance of any sheriff, deputy sheriff, chief of police, policeman, natural resources police officer and peace officer of the state, or of any county or municipality therein, or of any able-bodied citizen of the United States, to assist and aid in accomplishing the purposes expressed in this article. When called, any officer or person is, during the time his or her assistance is required, for all purposes a member of the West Virginia State Police and subject to all the provisions of this article. (f) The superintendent may also assign members of the division to perform police duties on any turnpike or toll road, or any section of any turnpike or toll road, operated by the West Virginia Parkways, Economic Development and Tourism Authority: Provided, That the authority shall reimburse the West Virginia State Police for salaries paid to the members and shall either pay directly or reimburse the division for all other expenses of the group of members in accordance with actual or estimated costs determined by the superintendent. (g) The West Virginia State Police may develop proposals for a comprehensive county or multicounty plan on the implementation of an enhanced emergency service telephone system and may cause a public meeting on the proposals, all as set forth in section six-a, article six, chapter twenty-four of this code. (h) By July 1, 1993, the superintendent shall establish a network to implement reports of the disappearance of children by local law-enforcement agencies to local school division superintendents and the State Registrar of Vital Statistics. The network shall be designed to establish cooperative arrangements between local law-enforcement agencies and local school divisions concerning reports of missing children and notices to law-enforcement agencies of requests for copies of the cumulative records and birth certificates of missing children. The network shall also establish a mechanism for reporting the identities of all missing children to the State Registrar of Vital Statistics. (i) The superintendent may at his or her discretion and upon the written request of the West Virginia Alcohol Beverage Control Commissioner assist the commissioner in the coordination and enforcement of article sixteen, chapter eleven of this code and chapter sixty of this code. (j) Notwithstanding the provisions of article one-a, chapter twenty of this code, the Superintendent of the West Virginia State Police may sell any surplus real property to which the West Virginia State Police or its predecessors retain title, and deposit the net proceeds into a special revenue account to be utilized for the purchase of additional real property and for repairs to or construction of detachment offices or other facilities required by the West Virginia State Police. There is hereby created a special revolving fund in the State Treasury which shall be designated as the "Surplus Real Property Proceeds Fund". The fund shall consist of all money received from the sale of surplus real property owned by the West Virginia State Police. Moneys deposited in the fund shall only be available for expenditure upon appropriation by the Legislature: Provided, That amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this subsection may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. (k) Notwithstanding any other provision of this code, the agency for surplus property is hereby empowered to transfer funds generated from the sale of vehicles, other equipment and commodities belonging to the West Virginia State Police to a special revenue account within the West Virginia State Police entitled the West Virginia State Police surplus transfer account. Moneys deposited in the fund shall only be available for expenditure upon appropriation by the Legislature: Provided, That amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this subsection may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. Any funds transferred to this account may be utilized by the superintendent to defray the cost of normal operating needs of the division. (l) If the State Police or any other law-enforcement agency in this state receives a report that a person who has Alzheimer's disease and related dementia is missing, the State Police or any other law-enforcement agency shall immediately open an investigation for the purpose of determining the whereabouts of that missing person. Any policy of the State Police or any other law-enforcement agency relating to a waiting period prior to initiation of an investigation of a missing person does not apply in the case of a person who has Alzheimer's disease or other related dementia of the type referred to in this subsection. (m) Notwithstanding any provision of this code to the contrary, effective on and after July 1, 2007, the expenses and salaries paid to the members of the West Virginia State Police for the monitoring and enforcement duties defined in chapter seventeen-c of this code may not be paid from the State Road Fund or subject to reimbursement from the Division of Motor Vehicles but is subject to appropriation by the Legislature.
§15-2-13. Limitations upon members; exceptions. (a) No member of the West Virginia state police may in any way interfere with the rights or property of any person except for the prevention of crime. (b) No member of the West Virginia state police may in any way become active or take part in any political contest or at any time participate in any political party caucus, committee, primary, assembly or convention or in any general or special election while in uniform, except to cast his or her ballot. (c) No member of the West Virginia state police may be detailed or ordered to duty at or near any voting precinct where any election or convention is held on the day of an election or convention; nor may any member thereof remain in, about or near the voting precinct or place of convention, except to cast his or her vote. After voting he or she shall forthwith retire from the voting precinct. No member may act as an election official. If any member of the West Virginia state police is found guilty of violating any of the provisions of this section, he or she shall be dismissed by the superintendent as hereinafter provided. (d) While out of uniform and off duty, no member of the West Virginia state police may participate in any political activity except: (1) Campaign for and hold office in political clubs and organizations; (2) Actively campaign for candidates for public office in partisan and nonpartisan elections; and (3) Contribute money to political organizations and attend political fund-raising functions. (e) No member of the West Virginia state police may at any time: (1) Be a candidate for public office in a nonpartisan or partisan election; (2) Use official authority or influence to interfere with or affect the results of an election or nomination; or (3) Directly or indirectly coerce contributions from subordinates in support of a political party or candidate. (f) No officer or member of the West Virginia state police may, in any labor trouble or dispute between employer and employee, aid or assist either party thereto, but shall in these cases see that the statutes and laws of this state are enforced in a legal way and manner.
§15-2-14. Oath of superintendent and members. The superintendent and each of the other members of the department of public safety, before entering upon the discharge of his duties, shall take and subscribe to an oath which shall be in form and effect as follows, to wit: State of West Virginia, County of ........................., to wit: I, ........................., do solemnly swear that I will support the Constitution of the United States, the Constitution of the State of West Virginia, and I will honestly and faithfully perform the duties imposed upon me under the provisions of law as a member of the Department of Public Safety to the best of my skill and judgment. .............................. Taken, subscribed and sworn to before me, this the ...... day of ....................... .............................. All such oaths, except that of the superintendent, shall be filed and preserved in the office of the department of public safety.
§15-2-15. State Police Child Abuse and Neglect Investigations Unit. (a) The superintendent shall establish a special unit of the State Police, called the Child Abuse and Neglect Investigations Unit. The purpose of the unit is to focus on identifying, investigating and prosecuting criminal child abuse and neglect cases, in coordination with Child Protective Services, established pursuant to section nine, article six-a, chapter forty-nine of this code. The unit shall assist other State Police members with child abuse or neglect investigations as well as the Division of Child Protective Services. The unit may provide training, technical expertise and coordination of services for other law-enforcement agencies, Child Protective Services caseworkers, prosecuting attorneys and multidisciplinary teams established pursuant to the provisions of section two, article five-d, chapter forty-nine of this code, to identify, investigate, report and prosecute criminal child abuse and criminal child neglect cases. However, nothing in this section may be construed to mean that the unit will assume the duties or investigations of other State Police members or other law-enforcement officers. (b) The unit will comprise, at a minimum, six members of the State Police. The superintendent shall assign a unit director, and shall assign five members regionally, to be dedicated and trained to assist county Child Protective Services Offices and caseworkers in investigating and coordinating with other law-enforcement personnel, cases of suspected child abuse or neglect. Cases to be investigated include allegations received pursuant to section two, article six-a, chapter forty-nine of this code, and any other credible child abuse or neglect allegations. (c) The unit director's duties include: (1) Overseeing State Police members assigned to the unit; (2) Coordinating activities of the unit with Child Protection Services; (3) Assisting Child Protective Services in developing and refining protocols for improving identification and prosecution of suspected criminal acts of child abuse or neglect; and (4) Assuring that all other directives and responsibilities of the unit are fulfilled. (d) The unit shall maintain a statewide statistical index on child abuse and neglect convictions resulting from convictions for violations of sections two, two-a, three, three-a, four and four-a, article eight-d, of chapter sixty-one of this code, to monitor the timely and proper investigation and disposition of child abuse or neglect cases. The statistical data index maintained by the unit shall not contain information of a specific nature that would identify individual cases or persons. (e) On or before December 31, of each year, the unit director shall submit an annual report to the Joint Committee on Government and Finance. The annual report is to include the statistical index required under the provisions of subsection (d) of this section, and may include recommendations for statutory or program reforms that will assist the unit and further promote the goals of the unit. The report may not contain information of a specific nature that would identify individual cases or persons. (f) Every state law-enforcement agency of this state shall periodically provide statistical information regarding child abuse and neglect cases investigated and prosecuted by that lawenforcement agency to the unit. (g) The superintendent may propose rules for legislative approval or procedural rules as necessary to effectuate the provisions of this section in accordance with the provisions of article three, chapter twenty-nine-a of this code. The superintendent shall provide forms to law-enforcement agencies, circuit clerks and parole officers to facilitate submission of appropriate information necessary to prepare the statistical reports required by this section. (h) There is hereby established a special account in the state Treasury, into which shall be deposited any gifts, grants or donations made to the unit, and any other funds directed to be deposited into the account by appropriation of the Legislature, and to be expended for the purposes of this section pursuant to appropriation of the Legislature.
§15-2-16. Interference with officers or members; false information; penalty. Any person who shall at any time intercept, molest or interfere with any officer or member of the department of public safety while on duty, or any state, county or municipal officer or person then under the charge and direction of some officer or member of the department of public safety while on duty, or who knowingly gives false or misleading information to a member of the department, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $25 nor more than $200, or imprisoned in the county jail for not more than sixty days, or both fined and imprisoned.
§15-2-17. Unauthorized use of uniform, badge or other insignia; impersonation of member; penalty. Every person who is not a member of the department is hereby forbidden to wear, use, order to be used or worn, copy or imitate in any respect or manner the uniform, badge, insignia and equipment prescribed for members of the West Virginia State Police, and any person who shall violate the provisions of this article, for which no other penalty is expressly provided, and any person who shall falsely represent himself or herself to be an officer or member of the West Virginia State Police, or to be under the order or direction of any officer or member of said department, or who shall, unless an officer or member thereof, wear the uniform prescribed for members of said department, or the badge or other insignia adopted or used by said department, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $200, or confined in the county jail for not more than six months, or both fined and confined: Provided, That items sold at the State Police post exchange as outlined in article two-e of this chapter do not qualify as agency issued uniforms, badge, insignia or equipment.
§15-2-18. Officers or members performing duties for private persons; general penalty; providing extraordinary police or security services by contract. (a) Any officer or member of the department of public safety who hires himself or herself to any person, firm or corporation to guard private property, or who demands or receives from any person, firm or corporation any money or other thing of value as a consideration for the performance of, or the failure to perform, his or her duties under the regulations of the superintendent and the provisions of this article, shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary for not less than one nor more than five years, and any such officer or member of the department of public safety who violates any other provisions of this article, for which no other penalty is expressly provided, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $25 nor more than $200, or imprisoned in the county jail for not more than four months, or both fined and imprisoned. (b) Notwithstanding any other provision of this article, the superintendent may contract with public, quasi-public, military or private entities to provide extraordinary police or security services by the department when it is determined by the superintendent to be in the public interest. The superintendent shall assign such personnel, equipment or facilities as is deemed necessary and the department shall be reimbursed for the wages, overtime wages, benefits and costs of providing the contract services as negotiated between the parties. The compensation paid to public safety personnel by virtue of contracts provided for in this section shall be paid from a special account and shall be excluded from any formulation used to calculate an employee's benefits. All requests for obtaining extraordinary police or security services shall be made to the superintendent in writing and shall explain the funding source and the authority for making such a request. No officer or member of the department shall be required to accept any assignment made pursuant to this subsection. Every officer or member assigned to duty hereunder shall be paid according to the hours and overtime hours actually worked notwithstanding that officer's or member's status as exempt personnel under the Federal Labor Standards Act or applicable state statutes. Every contract entered into under this subsection shall contain the provision that in the event of public disaster or emergency where the reassignment to official duty of all officers and members is required, neither the department nor any of its officers or members shall be liable for any damages incurred as the result of the reassignment. Further, any entity contracting with the department of public safety under this section shall also agree as part of that contract to hold harmless and indemnify the state, department of public safety and its personnel from any liability arising out of employment under the contract. The superintendent is authorized to promulgate legislative rules and regulations in accordance with chapter twenty-nine-a of this code relating to the implementation of any contracts made under this subsection: Provided, That said regulations shall expressly prohibit private employment of officers or members in circumstances involving labor disputes.
§15-2-19. Bribing, etc., officers or members; penalty. If any person, firm or corporation shall give or offer to give any money or other thing of value to any officer or member of the department of public safety as a consideration for the performance of, or the failure to perform, any duty of such officer or member of the department of public safety under the rules and regulations of the superintendent and the provisions of this article, he or it shall be guilty of a felony and, if a person, upon conviction thereof, shall be confined in the penitentiary for a term of not less than one year nor more than five years, and if a firm or corporation, shall be fined not less than $3,000 nor more than $10,000.
§15-2-20. Transfer authorized; use for disciplinary purposes prohibited; notice required under certain circumstances; relocation expense; regulation of member's residence. The superintendent may transfer members to meet the operational needs of the department. A transfer may not be made as a disciplinary measure. Whenever any member of the department is to be transferred from one station to another station, for a period of time in excess of sixty days, the superintendent shall give written notice of such proposed transfer to such member at least fifteen days in advance of such transfer. The superintendent shall not, however, be required to give such notice in the event the transfer is at the request of the member who is to be transferred. In the event that a member appeals a transfer in accordance with section six of this article, the transfer shall not take effect pending the appeal before the board. If the board upholds the transfer, such transfer shall be effective upon the issuance of the board's decision and shall remain in effect pending any appeal of such decision by the member. Whenever any member of the department is transferred from one station to another station, for a period of time in excess of sixty days, all reasonable and necessary transportation expenses actually incurred in moving the household furniture and effects of such member and of his immediate family from his former station to his new station shall be paid by the department: Provided, That if any such member owns and resides in a mobile home, the department shall pay all reasonable and necessary transportation expenses actually incurred in moving such mobile home from such member's former station to his new station, but the department may not pay transportation expenses for moving such mobile home in excess of the amount which would have been paid for moving an equivalent amount of household furniture and effects had such member not owned such mobile home. A member transferred shall also be given a relocation expense of $300 if the transfer necessitated relocation of the member's family. The superintendent shall not restrict a member from residing in a county other than that in which the member is stationed, except that the superintendent may promulgate by appropriate written regulation to be applied uniformly throughout the department a restriction as to either: (1) The number of miles distant from his station which a member may reside, or (2) the time necessary under ordinary traffic conditions for a member to travel between his residence and station. The member may appeal the superintendent's order of transfer to the board of appeals created for such purpose or to the circuit court of Kanawha County in accordance with the provisions of section six of this article and all of the original papers in such cases shall be delivered to the appeals board or the circuit court, as the case may be. The right of a member to appeal a transfer shall not apply until the member has completed the eighteen-month probationary period with the department.
§15-2-21. Suspension, demotion or discharge of members; right of appeal. The superintendent may suspend, demote in rank or discharge from the service any member of the department of public safety for any of the following causes: Refusing to obey the lawful orders of his superior officer, neglect of duty, drunkenness, immorality, inefficiency, abuse of his authority, interference with the lawful right of any person, participation in political activities, primaries, conventions or elections, conviction for a crime or any action proscribed under this article. The superintendent shall cause an investigation to be made when notice of any one or more of such causes is brought to his attention and shall determine whether or not the member should be suspended, demoted in rank or discharged. If the superintendent orders the member suspended, demoted in rank or discharged, a written statement of the charges and a written order of suspension, demotion in rank or discharge shall be delivered personally to the member by his commanding officer, or next in command in the absence of his commanding officer. The superintendent shall explicitly set forth in any such written statement of charges the details giving rise to the cause or causes upon which he ordered such suspension, demotion in rank or discharge. The member may appeal the superintendent's order to the board of appeals created for such purpose or to the circuit court of Kanawha County in accordance with the provisions of section six of this article and all of the original papers in such cases shall be delivered to the appeals board or the circuit court, as the case may be. The right to appeal a suspension or discharge shall not apply to members until they have completed their probationary period with the department, which shall be for a period of eighteen months.
§15-2-22. Assignment of assistant Attorney General; employment of legal counsel. (a) The Attorney General may, upon request of the superintendent, assign an assistant Attorney General to the department. (b) Notwithstanding the provisions of section one, article three, chapter five of this code, the superintendent may authorize any member of the department to employ an attorney of such member's choice to act in proceedings wherein criminal charges are brought against such member because of action in line of duty. For such attorney's services an amount determined by the judge in whose court the action is pending, not to exceed $1,000, may be expended in any one case.
§15-2-23. Duties of superintendent as to statistics, aliens and labor conditions. The superintendent of the department of public safety is authorized from time to time to collect statistics and distribute information throughout the state, and in this to cooperate with the state superintendent of public schools and other educational agencies of the state, to secure the naturalization and Americanization of all foreign-born inhabitants; to employ all agencies in his power to secure a harmonious feeling and understanding between the employers of labor and their employees; and to secure this end he may call upon the educational and other state institutions for public speakers, and is authorized to hold public meetings at any point in the state where, in his judgment, such meetings will be of advantage to carry out the spirit of this law.
§15-2-24. Criminal Identification Bureau; establishment; supervision; purpose; fingerprints, photographs, records and other information; reports by courts and prosecuting attorneys; offenses and penalties. (a) The superintendent of the department shall establish, equip and maintain at the departmental headquarters a Criminal Identification Bureau, for the purpose of receiving and filing fingerprints, photographs, records and other information pertaining to the investigation of crime and the apprehension of criminals, as hereinafter provided. The superintendent shall appoint or designate a supervisor to be in charge of the Criminal Identification Bureau and such supervisor shall be responsible to the superintendent for the affairs of the bureau. Members of the department assigned to the Criminal Identification Bureau shall carry out their duties and assignments in accordance with internal management rules and regulations pertaining thereto promulgated by the superintendent. (b) The Criminal Identification Bureau shall cooperate with identification bureaus of other states and of the United States to develop and carry on a complete interstate, national and international system of criminal identification. (c) The Criminal Identification Bureau may furnish fingerprints, photographs, records or other information to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the State of West Virginia upon proper request stating that the fingerprints, photographs, records or other information requested are necessary in the interest of and will be used solely in the administration of official duties and the criminal laws. (d) The Criminal Identification Bureau may furnish, with the approval of the superintendent, fingerprints, photographs, records or other information to any private or public agency, person, firm, association, corporation or other organization, other than a law-enforcement or governmental agency as to which the provisions of subsection (c) of this section shall govern and control, but all requests under the provisions of this subsection for such fingerprints, photographs, records or other information must be accompanied by a written authorization signed and acknowledged by the person whose fingerprints, photographs, records or other information is to be released. (e) The Criminal Identification Bureau may furnish fingerprints, photographs, records and other information of persons arrested or sought to be arrested in this state to the identification bureau of the United States government and to other states for the purpose of aiding law enforcement. (f) Persons in charge of any penal or correctional institution, including any city or county jail in this state, shall take, or cause to be taken, the fingerprints and description of all persons lawfully committed thereto or confined therein and furnish the same in duplicate to the Criminal Identification Bureau, Department of Public Safety. Such fingerprints shall be taken on forms approved by the superintendent of the Department of Public Safety. All such officials as herein named may, when possible to do so, furnish photographs to the Criminal Identification Bureau of such persons so fingerprinted. (g) Members of the Department of Public Safety, and all other state law-enforcement officials, sheriffs, deputy sheriffs and each and every peace officer in this state, shall take or cause to be taken the fingerprints and description of all persons arrested or detained by them, charged with any crime or offense in this state, in which the penalty provided therefor is confinement in any penal or correctional institution, or of any person who they have reason to believe is a fugitive from justice or a habitual criminal, and furnish the same in duplicate to the Criminal Identification Bureau of the Department of Public Safety on forms approved by the superintendent of said department. All such officials as herein named may, when possible to do so, furnish to the Criminal Identification Bureau photographs of such persons so fingerprinted. For the purpose of obtaining data for the preparation and submission to the Governor and the Legislature by the Department of Public Safety of an annual statistical report on crime conditions in the state, the clerk of any court of record, the magistrate of any magistrate court and the mayor or clerk of any municipal court before which a person appears on any criminal charge shall report to the Criminal Identification Bureau the sentence of the court or other disposition of the charge and the prosecuting attorney of every county shall report to the Criminal Identification Bureau such additional information as the bureau may require for such purpose, and all such reports shall be on forms prepared and distributed by the Department of Public Safety, shall be submitted monthly and shall cover the period of the preceding month. (h) All persons arrested or detained pursuant to the requirements of this article shall give fingerprints and information required by subsections (f) and (g) of this section. Any person who has been fingerprinted or photographed in accordance with the provisions of this section who is acquitted of the charges upon which he or she was arrested and who has no previous criminal record may, upon the presentation of satisfactory proof to the department, have such fingerprints or photographs, or both, returned to them. (i) All state, county and municipal law-enforcement agencies shall submit to the bureau uniform crime reports setting forth their activities in connection with law enforcement. It shall be the duty of the bureau to adopt and promulgate rules and regulations prescribing the form, general content, time and manner of submission of such uniform crime reports. Willful or repeated failure by any state, county or municipal law-enforcement official to submit the uniform crime reports required by this article shall constitute neglect of duty in public office. The bureau shall correlate the reports submitted to it and shall compile and submit to the Governor and the Legislature semiannual reports based on such reports. A copy of such reports shall be furnished to all prosecuting attorneys and law-enforcement agencies. (j) Neglect or refusal of any person mentioned in this section to make the report required herein, or to do or perform any act on his or her part to be done or performed in connection with the operation of this section, shall constitute a misdemeanor and such person shall, upon conviction thereof, be punished by a fine of not less than $25 nor more than $200, or by imprisonment in the county jail for a period of not more than sixty days, or both. Such neglect shall constitute misfeasance in office and subject such persons to removal from office. Any person who willfully removes, destroys or mutilates any of the fingerprints, photographs, records or other information of the Department of Public Safety shall be guilty of a misdemeanor and such person shall, upon conviction thereof, be punished by a fine of not more than $100, or by imprisonment in the county jail for a period of not more than six months, or both. (k) The Criminal Identification Bureau (CIB) and the Federal Bureau of Investigation (FBI) shall retain applicant fingerprints for the purpose of participating in the Rap Back Program to determine suitability or fitness for a permit, license or employment. Agencies participating in the program shall notify applicants and employees subject to a criminal history check that their fingerprint shall be retained by the CIB and the FBI. Notification shall also be given to the applicant and employee subject to the Rap Back Program. (l) The State Police may assess a fee to applicants, covered providers or covered contractors for conducting the criminal background check and for collecting and retaining fingerprints for Rap Back as authorized under article forty-nine, chapter sixteen of this code. The assessment shall be deposited into a nonappropriated special revenue account within the State Treasurer’s office to be known as the WVSP Criminal History Account. Expenditures from this account shall be made by the superintendent for purposes set forth in this article and are authorized from collections. The account shall be administered by the superintendent and may not be deemed a part of the general revenue of the state.
§15-2-24a. National Crime Prevention and Privacy Compact. The Legislature of West Virginia approves and ratifies the National Crime Prevention and Privacy Compact, 42 U.S.C. §14616, as it existed on January 1, 2006, and the compact shall remain in effect in this state until the Legislature renounces the compact by statute. The Superintendent of the West Virginia State Police shall execute, administer, and implement the compact on behalf of the state, and may adopt necessary rules, regulations, and procedures for the national exchange of criminal history records for noncriminal records purposes. Ratification of the compact does not affect the obligations and responsibilities of the State Police criminal records section regarding the dissemination of criminal history records within West Virginia.
§15-2-24b. Fees for certain fingerprinting services; dedication of fees. In addition to any fees that may be established or collected by the State Police under any other provision of this article or rule promulgated pursuant thereto, the State Police shall collect a fee of $20 for performing adult private employment fingerprinting or fingerprinting for federal firearm permits: Provided, That all state entities are exempt from the fee. Fees collected pursuant to this section shall be deposited into the West Virginia State Police Retirement System and shall be in addition to employer percent-of-payroll contribution.
§15-2-24c. Relationship with Marshall University Forensic Science Center. (a) The Forensic DNA Analysis Laboratory of the Marshall University Forensic Science Center is hereby declared to be engaged in the administration of criminal justice as that term is defined in 28 C. F. R. 20.3(b). (b) The Marshall University Forensic Science Center and the West Virginia State Police shall confer with each other as to available grants or similar possible funding sources and applications therefor. (c) To avoid duplicative and wasteful use of limited resources and to ensure maximum utilization of available funds, the West Virginia State Police shall have primacy of decisionmaking over the Marshall University Forensic Science Center with regard to applications for particular grants or funding in which both entities may have an interest to which the Marshall University Forensic Science Center shall accede. (d) The West Virginia State Police and the Marshall University Forensic Science Center shall execute a written agreement to ensure compliance with the provisions of subsection (c) of this section.
§15-2-24d. State Police Forensic Laboratory Fund. The State Police Forensic Laboratory Fund is hereby created within the Treasury of the state. The fund shall be administered by the superintendent and shall consist of all moneys made available for the operations of the State Police Forensic Laboratory from any source, including, but not limited to, all fees, all gifts, grants, bequests or transfers from any source, any moneys that may be appropriated and designated for the forensic laboratory by the Legislature and all interest or other return earned from investment of the fund. Expenditures from the fund shall be for the operations of the State Police Forensic Laboratory and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2018, expenditures are authorized from collections rather than pursuant to an explicit appropriation by the Legislature.
§15-2-25. Rules generally; carrying of weapons upon retirement or medical discharge. Subject to the written approval of the Governor and the provisions of this article, the superintendent may make and promulgate proper rules for the government, discipline and control of the West Virginia state police and shall also cause to be established proper rules for the examinations of all applicants for appointment thereto. The members of the West Virginia state police shall be permitted to carry arms and weapons and no license may be required for the privilege. Upon retirement or medical discharge from the West Virginia state police and with the written consent of the superintendent, any retired or medically discharged member may carry a handgun for the life of the member following retirement or medical discharge notwithstanding the provisions of article seven, chapter sixty-one of this code: Provided, That the superintendent's written letter of consent to carry a handgun may not last for more than five years at a time and a retired or medically discharged member who wishes to continue to carry a handgun beyond five years of the date of his or her initial retirement or medical discharge must request and obtain a renewal of the superintendent's written permission to carry a handgun at least once every five years. A retired or medically discharged member desiring to carry a handgun after retirement or medical discharge must provide his or her own handgun. Upon request, each member shall be presented with a letter of authorization signed by the superintendent authorizing the retired or medically discharged member to carry a handgun. The written authorization shall be carried by the retired or medically discharged member at all times that he or she has a handgun on his or her person. The superintendent may not issue a letter of authorization to any retired or medically discharged member who is no longer employed by the State Police due to a mental disability or who the superintendent has reason to believe is mentally incapacitated to the extent it would present a threat of physical harm to one or more persons for the member to carry a concealed weapon. The superintendent may revoke the authority at any time without cause and without recourse. Conviction of the retired or medically discharged member for the commission of any felony or for a misdemeanor involving the improper or illegal use of a firearm shall cause this authority to terminate immediately without a hearing or other recourse and without any action on the part of the superintendent. The superintendent shall promulgate a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, which rule shall prescribe requirements necessary for the issuance and continuance of the authority herein granted.
§15-2-25a. Meaning of terms. Any term used in this article relating to the Death, Disability and Retirement Fund has the same meaning as when used in a comparable context of the laws of the United States, unless a different meaning is clearly required. Any reference in this article to the Internal Revenue Code means the Internal Revenue Code, as it has been amended.
§15-2-25b. Definitions. As used in this article, unless the context clearly requires a different meaning: (a) "Actuarially equivalent" or "of equal actuarial value" means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the retirement board in accordance with the provisions of this article: Provided, That when used in the context of compliance with the federal maximum benefit requirements of Section 415 of the Internal Revenue Code, "actuarially equivalent" shall be computed using the mortality tables and interest rates required to comply with those requirements. (b) "Agency" means the West Virginia State Police. (c) "Beneficiary" means a surviving spouse or other surviving beneficiary who is entitled to, or will be entitled to, an annuity or other benefit payable by the fund. (d) "Board" means the West Virginia Consolidated Public Retirement Board created pursuant to article ten-d, chapter five of this code. (e) "Dependent child" means any unmarried child or children born to or adopted by a member of the fund who is: (1) Under the age of eighteen; (2) After reaching eighteen years of age, continues as a full-time student in an accredited high school, college, university, business or trade school, until the child or children reaches the age of twenty-three years; or (3) Is financially dependent on the member by virtue of a permanent mental or physical disability upon evidence satisfactory to the board. (f) "Dependent parent" means the member's parent or stepparent claimed as a dependent by the member for federal income tax purposes at the time of the member's death. (g) "Employee" means any person regularly employed in the service of the agency as a law-enforcement officer before March 12, 1994, and who is eligible to participate in the fund. (h) "Fund", "plan" or "system" means the West Virginia State Police Death, Disability and Retirement Fund. (i) "Law-enforcement officer" means an individual employed or otherwise engaged in either a public or private position which involves the rendition of services relating to enforcement of federal, state or local laws for the protection of public or private safety, including, but not limited to, positions as deputy sheriffs, police officers, marshals, bailiffs, court security officers or any other law-enforcement position which requires certification, but excluding positions held by elected sheriffs or appointed chiefs of police whose duties are determined by the board to be purely administrative in nature. (j) "Member" means any person who has contributions standing to his or her credit in the fund and who has not yet entered into retirement status. (k) "Partially disabled" means an employee's inability, on a probable permanent basis, to perform the essential duties of a law-enforcement officer by reason of any medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months, but which impairment does not preclude the employee from engaging in other types of nonlaw-enforcement employment. (l) "Physical or mental impairment" means an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques. (m) "Plan year" means the twelve-month period commencing on July 1 of any designated year and ending the following June 30. (n) "Qualified public safety employee" means any employee of a participating state or political subdivision who provides police protection, fire-fighting services or emergency medical services for any area within the jurisdiction of the state or political subdivision, or such other meaning given to the term by Section 72(t)(10)(B) of the Internal Revenue Code or by Treasury Regulation §1.401(a)-1(b)(2)(v) as they may be amended from time to time. (o) "Retirant" or "retiree" means any former member who is receiving an annuity payable by the fund. (p) "Surviving spouse" means the person to whom the member was legally married at the time of the member's death and who survived the member. (q) "Totally disabled" means an employee's probable permanent inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. For purposes of this subsection, an employee is totally disabled only if his or her physical or mental impairments are so severe that he or she is not only unable to perform his or her previous work as an employee of the agency but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (1) The work exists in the immediate area in which the employee lives; (2) a specific job vacancy exists; or (3) the employee would be hired if he or she applied for work.
§15-2-26. Continuation of Death, Disability and Retirement Fund; designating the Consolidated Public Retirement Board as administrator of fund. (a) There is continued the Death, Disability and Retirement Fund created for the benefit of members, retirants and any dependents of retirants or deceased members of the fund. It is contemplated that substantially all of the members of the retirement system shall be qualified public safety employees as defined in section twenty-five-b of this article. (b) There shall be deducted from the monthly payroll of each employee and paid into the fund six percent of the amount of his or her salary: Provided, That beginning on July 1, 1994, there shall be deducted from the monthly payroll of each employee and paid into the fund seven and one-half percent of the amount of his or her salary: Provided, however, That on and after July 1, 1995, there shall be deducted from the monthly payroll of each employee and paid into the fund nine percent of the amount of his or her salary. An additional twelve percent of the monthly salary of each employee shall be paid by the State of West Virginia monthly into the fund out of the annual appropriation for the agency: Provided further, That beginning on July 1, 1995, the agency shall pay thirteen percent of the monthly salary of each employee into the fund: And provided further, That beginning on July 1, 1996, the agency shall pay fourteen percent of the monthly salary of each employee into the fund: And provided further, That on and after July 1, 1997, the agency shall pay fifteen percent of the monthly salary of each employee into the fund. There shall also be paid into the fund amounts that have previously been collected by the superintendent of the agency on account of payments to employees for court attendance and mileage, rewards for apprehending wanted persons, fees for traffic accident reports and photographs, fees for criminal investigation reports and photographs, fees for criminal history record checks, fees for criminal history record reviews and challenges or from any other sources designated by the superintendent. All moneys payable into the fund shall be deposited in the State Treasury and the board shall keep a separate account thereof. (c) Notwithstanding any other provisions of this article, forfeitures under the fund shall not be applied to increase the benefits any member would otherwise receive under the fund. (d) The moneys in this fund, and the right of a member to a retirement allowance, to the return of contributions, or to any benefit under the provisions of this article, are exempt from any state or municipal tax; are not subject to execution, garnishment, attachment or any other process whatsoever, with the exception that the benefits or contributions under the fund are subject to "qualified domestic relations orders" as that term is defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans; and are unassignable except as is provided in this article. The fund shall be administered by the board created pursuant to article ten-d, chapter five of this code. (e) All moneys paid into and accumulated in the fund, except amounts designated or set aside by the awards, shall be invested by the West Virginia Investment Management Board as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees. (a) The board shall retire any member of the fund who has filed with the board his or her voluntary petition in writing for retirement and: (1) Has or shall have completed twenty-five years of service as a member of the fund (including military service credit granted under the provisions of section twenty-eight of this article); (2) Has or shall have attained the age of fifty years and has or shall have completed twenty years of service as a member of the fund (excluding military service credit granted under section twenty-eight of this article); or (3) Being under the age of fifty years has or shall have completed twenty years of service as a member of the fund (excluding military service credit granted under section twentyeight of this article). (b) When the board retires any member under any of the provisions of this section, the member is entitled to receive annually and shall be paid from the fund in equal monthly installments during his or her lifetime while in status of retirement, one or the other of two amounts, whichever is the greater, subject to reduction if necessary to comply with the maximum benefit provisions of Section 415 of the Internal Revenue Code and section forty-four of this article: (1) An amount equal to five and one-half percent of the aggregate of salary paid to the employee during the whole period of service as an employee of the agency; or (2) The sum of $6,000. When a member has or shall have served twenty years or longer but less than twenty-five years as a member of the fund and is retired under any of the provisions of this section before he or she has attained the age of fifty years, payment of monthly installments of the amount of retirement award to the member shall commence on the day following the date he or she attains the age of fifty years. Beginning on July 15, 1994, in no event may the provisions of section thirteen, article sixteen, chapter five of this code be applied in determining eligibility to retire with either immediate or deferred commencement of benefit. (c) A member meeting the age and service requirements of this section who terminates employment at two thousand four hundred hours may begin to receive retirement annuity payments immediately upon termination of employment. Any member meeting the age and service requirements of this section who terminates employment at a time of day other than two thousand four hundred hours shall receive a pro rata share of a full day's amount for that day. Upon receipt of properly executed forms from the agency and the member, the board shall process the member's retirement petition and commence annuity payments as soon as administratively feasible. (d) Any individual who is a leased employee is not eligible to participate in the fund. For purposes of this fund, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final power to decide the question.
§15-2-27a. Retirement annual annuity adjustments. (a) Every retirant of the fund who is fifty-five years of age or older and who is retired by the board under the provisions of section twenty-seven of this article; every retirant of the fund who is retired by the board under the provisions of section twenty-nine or thirty of this article; and every beneficiary receiving a benefit pursuant to section thirty-three or thirty-four of this article is eligible to receive an annual retirement annuity adjustment equal to three and seventy-five hundredths percent of his or her retirement award or beneficiary award. The adjustments may not be retroactive. Yearly adjustments shall begin upon July 1, of each year. The annuity adjustments shall be paid to the retirants or beneficiaries from the fund in equal monthly installments while in status of retirement or payment of beneficiary award. The annuity adjustments shall supplement the retirement awards and benefits as provided in this article. (b) Any retirant or beneficiary who receives a benefit pursuant to the provisions of section twenty-nine, thirty, thirty-three or thirty-four of this article shall begin to receive the annual annuity adjustment one year after the commencement of the benefit on the next July first: Provided, That if the retirant has been retired for less than one year or if the beneficiary has been in receipt of beneficiary payments for less than one year when the first annuity adjustment is given on that July first, that first annuity adjustment shall be a pro rata share of the full year's annuity adjustment.
§15-2-28. Credit toward retirement for member's prior military service; credit toward retirement when employee has joined Armed Forces in time of armed conflict; qualified military service. (a) For purposes of this section, the term "active military duty" means full-time active duty with the Armed Forces of the United States, namely the United States Air Force, Army, Coast Guard, Marines or Navy; and service with the National Guard or reserve military forces of any of the Armed Forces when the employee has been called to active full-time duty and has received no compensation during the period of the duty from any person other than the Armed Forces. (b) Any member of the fund who has previously served on active military duty is entitled to and shall receive credit on the minimum period of service required by law for retirement pay from the service of the West Virginia State Police under the provisions of this article for a period equal to the active military duty not to exceed five years, subject to the following: (1) That he or she has been honorably discharged from the Armed Forces; (2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty; (3) That he or she is not receiving credit from any other retirement system administered by the board for his or her active military duty; and (4) That, except with respect to disability retirement pay awarded under section thirty of this article, he or she has actually served with the fund for twenty years exclusive of his or her active military duty. (c) The amount of retirement pay to which any member is entitled shall be calculated and determined as if he or she had been receiving for the period of his or her active military duty a monthly salary from the agency equal to the average monthly salary which he or she actually received from the agency for his or her total service with the agency exclusive of the active military duty. The superintendent shall transfer and pay into the fund from moneys appropriated for the agency, a sum equal to eighteen percent of the aggregate of the salaries on which the retirement pay of all members has been calculated and determined for their periods of active military duty. In addition, any person who, while an employee of the agency was commissioned, enlisted or inducted into the Armed Forces of the United States or, being a member of the reserve officers' corps, was called to active duty in the Armed Forces between September 1, 1940, and the close of hostilities in World War II, or between June 27, 1950, and the close of the armed conflict in Korea on July 27, 1953, between August 1, 1964, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by the Congress or by executive or other order of the President, is entitled to and shall receive credit on the minimum period of service required by law for retirement pay from the service of the West Virginia State Police for a period equal to the full time he or she has or shall, pursuant to the commission, enlistment, induction or call, have served with the Armed Forces subject to the following: (1) That he or she has been honorably discharged from the Armed Forces; (2) That within ninety days after honorable discharge from the Armed Forces he or she has presented himself or herself to the superintendent and offered to resume service as an active employee of the agency; and (3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the Armed Forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called. (d) That amount of retirement pay to which any employee is entitled shall be calculated and determined as if the employee has continued in the active service of the agency at the rank or grade to him or her appertaining at the time of the commission, induction, enlistment or call, during a period coextensive with the time the employee served with the Armed Forces pursuant to the commission, induction, enlistment or call. The superintendent of the agency shall transfer and pay each month into the fund from moneys appropriated for the agency a sum equal to eighteen percent of the aggregate of salary which all employees would have been entitled to receive had they continued in the active service of the agency during a period coextensive with the time the employee served with the Armed Forces pursuant to the commission, induction, enlistment or call: Provided, That the total amount of military service credit allowable under this section shall not exceed five years. (e) Notwithstanding any of the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. The board may determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
§15-2-29. Awards and benefits for disability incurred in performance of duty. (a) Any member of the fund who has not yet entered retirement status on the basis of age and service and who becomes partially disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of employees of the agency or incurred pursuant to or while the employee was engaged in the performance of his or her duties as an employee of the agency shall, if, in the opinion of the board, he or she is by reason of that cause probably permanently unable to perform adequately the duties required of him or her as an employee of the agency, but is able to engage in any other gainful employment in a field other than law enforcement, be retired from active service by the board. The member thereafter is entitled to receive annually from the fund in equal monthly installments during his or her lifetime; or until the disability eligibility sooner terminates, one or the other of two amounts, whichever is greater: (1) An amount equal to five and one-half percent of the total salary which would have been earned during twenty-five years, or during actual service if more than twenty-five years in the fund, based on the average earnings of the retirant while employed as an employee of the agency; or (2) The sum of $6,000. (b) A retirant who is partially disabled under this article may not, while in receipt of benefits for partial disability, be employed as a law-enforcement officer: Provided, That a retirant retired on partial disability under this article may serve as an elected sheriff or appointed chief of police in the state without a loss of disability retirement benefits so long as the elected or appointed position is shown, to the satisfaction of the board, to require the performance of administrative duties and functions only, as opposed to the full range of duties of a lawenforcement officer. (c) If any member not yet in retirement status on the basis of age and service is found by the board to be permanently and totally disabled as the result of a physical or mental impairment resulting from any occupational risk or hazard inherent in or peculiar to the services required of employees of the agency or incurred pursuant to or while the member was engaged in the performance of his or her duties as an employee of the agency, the member is entitled to receive annually and there shall be paid from the fund in equal monthly installments during his or her lifetime or until the disability eligibility sooner terminates, an amount equal to eight and one-half percent of the total salary which would have been earned by the employee during twenty-five years, or during actual service if more than twenty-five years of service in the fund, based on the average earnings of the retirant while employed as an employee of the agency: Provided, That in no event may the amount be less than $15,000 per annum, unless otherwise required by this article. (d) The superintendent may expend moneys from funds appropriated for the agency in payment of medical, surgical, laboratory, X-ray, hospital, ambulance and dental expenses and fees and reasonable costs and expenses incurred in the purchase of artificial limbs and other approved appliances which may be reasonably necessary for any member or disability retirant who has or becomes temporarily, permanently or totally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the service required of employees of the agency or incurred pursuant to or while the member was or shall be engaged in the performance of duties as an employee of the agency. Whenever the superintendent determines that any disabled member or retirant is ineligible to receive any of the aforesaid benefits at public expense, the superintendent shall, at the request of the disabled member or retirant, refer the matter to the board for hearing and final decision. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule approved by the West Virginia Insurance Commission. (e) Any member awarded a disability benefit under the provisions of this section may receive retirement disability annuity payments on the day following the board's approval of his or her disability application. Upon termination of employment and receipt of properly executed forms from the agency and the member, the board shall process the member's disability retirement benefit and commence annuity payments as soon as administratively feasible. (f) For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
§15-2-30. Awards and benefits for disability due to other causes. (a) If any employee who has served less than twenty years and who remains in the active service of the agency has, in the opinion of the board, become permanently partially or totally disabled to the extent that the employee cannot adequately perform the duties required of an employee of the agency from any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, the employee shall be retired by the board. The employee is entitled to receive annually and shall be paid from the fund in equal monthly installments during a period equal to one-half the time he or she served as an employee of the agency or until the disability eligibility sooner terminates, a sum equal to five and one-half percent of the total salary which would have been earned during twenty-five years of service. At the end of the one-half time period of service, the benefit payable for the remainder of the retirant's life is an annual sum paid in monthly installments equal to one-half the base salary received by the retirant from the agency in the preceding twelve-month period immediately prior to the disability award: Provided, That if the retirant was not employed with the agency for twelve months immediately prior to the disability award, the amount of monthly salary shall be annualized for the purpose of determining the benefit. (b) If the employee, at the time of retirement under the terms of this section, has served twenty years or longer as an employee of the agency, the employee is entitled to receive annually and shall be paid from the fund in equal monthly installments, commencing on the date the employee is retired and continuing during his or her lifetime while in status of retirement or until the disability eligibility sooner terminates, a sum equal to five and one-half percent of the aggregate of salary paid to the retirant through the day immediately preceding his or her disability award, to be determined in the manner provided by subsection (c), section twenty-seven of this article. (c) An employee awarded a disability benefit under the provisions of this section may receive retirement disability annuity payments on the day following the board's approval of his or her disability application. Upon termination of employment and receipt of properly executed forms from the agency and the employee, the board shall process the disability retirement benefit and commence annuity payments as soon as administratively feasible. (d) For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
§15-2-31. Disability physical examinations; termination. (a) The board may require any retirant who has been retired with compensation on account of disability to submit to a physical and/or mental examination by a physician or physicians selected or approved by the board and a report of the findings of the physician or physicians shall be submitted in writing to the board for its consideration. All medical costs associated with the examination shall be paid by the fund. If, from the report or from the report and hearing on the report, the board is of the opinion and finds that the disabled retirant has recovered from the disability to the extent that he or she is able to perform adequately the duties of a law-enforcement officer, the board shall within five working days provide written notice of the finding to the Superintendent of State Police, who shall reinstate the retirant to active duty as a member of the department at his or her rank or classification prior to the disability retirement within forty-five days of the finding, unless the retirant declines to be reinstated, is found by a background check to be ineligible for reinstatement, or is found by the Superintendent to be unacceptable due to the retirant's performance history and evaluations during prior work with the department. The Superintendent shall promptly notify the Board when the retirant is reinstated, is found ineligible for reinstatement due to a background check or unacceptable prior performance history or evaluations, or refuses reinstatement. The board shall order disability payments from the fund to be terminated at the earlier of the date of the retirant's reinstatement, regular retirement, failure of a background check, finding of unacceptable prior performance history or evaluation with the department, failure to accept reinstatement or forty-five days from the board's finding. If, from the report or the report and hearing on the report, the board is of the opinion and finds that the disabled retirant has recovered from his or her previously determined probable permanent disability to the extent that he or she is able to engage in gainful employment but remains unable to adequately perform the duties of a law-enforcement officer, the board shall order the payment, in monthly installments of an amount equal to two thirds of the salary, in the case of a retirant retired under the provisions of section twenty-nine of this article or equal to one half of the salary, in the case of a retirant retired under the provisions of section thirty of this article, excluding any compensation paid for overtime service, for the twelve-month employment period immediately preceding the disability award: Provided, That if the retirant had not been employed with the fund for twelve months immediately prior to the disability award, the amount of monthly salary shall be annualized for the purpose of determining the benefit. (b) A disability retirant who is returned to active duty as a member of the West Virginia State Police shall again become a member of the retirement system in which he or she was originally enrolled and the retirant's credited service in force at the time of retirement shall be restored.
§15-2-31a. Application for disability benefit; determinations. (a) Application for a disability benefit may be made by a member under the provisions of section twenty-nine of this article, by an employee under the provisions of section thirty of this article or, if the member or employee is under an incapacity, by a person acting with legal authority on the member's or the employee's behalf. After receiving an application for a disability benefit, the board shall notify the superintendent of the agency that an application has been filed: Provided, That when, in the judgment of the superintendent, an employee is no longer physically or mentally fit for continued duty as an employee of the West Virginia State Police and the employee has failed or refused to make application for disability benefits under this article, the superintendent may petition the board to retire the employee on the basis of disability pursuant to rules which may be established by the board. Within thirty days of the superintendent's receipt of the notice from the board or the filing of the superintendent's petition with the board, the superintendent shall forward to the board a statement certifying the duties of the employee's employment, information relating to the superintendent's position on the work relatedness of the employee's alleged disability, complete copies of the employee's medical file and any other information requested by the board in its processing of the application, if this information is requested timely. (b) The board shall propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code relating to the processing of applications and petitions for disability retirement under this article. (c) The board shall notify the member and the superintendent of its final action on the disability application or petition within ten days of the board's final action. The notice shall be sent by certified mail, return receipt requested. If either the member or the superintendent is aggrieved by the decision of the board and intends to pursue judicial review of the board's decision as provided in section four, article five, chapter twenty-nine-a of this code, the party so aggrieved shall notify the board within twenty days of the member's or superintendent's receipt of the board's notice that they intend to pursue judicial review of the board's decision. (d)(1) The board shall require each disability benefit recipient to file an annual certified statement of earnings, to include the amount and source of earnings and any other information required in legislative rules which may be proposed by the board. The board may waive or modify the requirement that a recipient of total disability benefits file the annual statement of earnings if the board's physician certifies that the recipient's disability is ongoing. The board shall annually examine the information submitted by each recipient. If a disability retirant refuses to file a statement and other information required by the board, the disability benefit shall be suspended, after notice and opportunity to be heard, until the statement and information are filed. (2) The board shall annually examine any information available from the State Tax Commissioner on all recipients of disability benefits pursuant to article ten, chapter eleven of this code. (e)(1) A nonblind recipient earning annual income exceeding the equivalent of $860 per month in the year two thousand six, after impairment-related work expenses are subtracted from earnings, has engaged in substantial gainful activity. A statutorily blind recipient has engaged in substantial gainful activity in the year two thousand six if the recipient has earned annual income exceeding the equivalent of $1,450 per month after impairment-related work expenses are subtracted from earnings. (2) The substantial gainful activity dollar limit shall be automatically adjusted annually to correspond to the dollar limit as established and published by the United States Social Security Administration for each year in accordance with methods published in the Federal Register (FR6582905 December 29, 2000) and similar methods used by the Social Security Administration applying the average annual wage index. (3) If after review of a disability retirant's annual statement of earnings, tax records or other financial information, as required or otherwise obtained by the board, the board determines that earnings of the recipient of total disability benefits in the preceding year are sufficient to show that the recipient engaged in substantial gainful activity, the disability retirant's disability annuity shall be terminated by the board, upon recommendation of the board's disability review committee and after notice and opportunity to be heard, on the first day of the month following the board's action. (4) If the board obtains information that a recipient of partial disability benefits is employed as a law-enforcement officer, upon recommendation of the board's disability review committee and after notice and an opportunity to be heard, the board shall terminate the recipient's disability benefits on the first day of the month following the board's action. (f) Any person who wishes to reapply for disability retirement and whose disability retirement has been terminated by the board pursuant to this section may do so within ninety days of the effective date of termination: Provided, That any person reapplying for disability benefits shall undergo an examination at the applicant's expense by an appropriate medical professional selected by the board as part of the reapplication process. (g) Notwithstanding other provisions in this section, any person whose disability retirement has been terminated by the board pursuant to this section may apply for regular retirement benefits upon meeting the eligibility requirements of age and years of service.
§15-2-31b. Annual report on disability retirement experience. Not later than January 1, 2006, and each January 1 thereafter, the board shall prepare a report for the preceding fiscal year of the disability retirement experience of the West Virginia State Police Death, Disability and Retirement Fund. The report shall specify the total number of disability applications submitted, the status of each application as of the last day of the fiscal year, total applications granted or denied, and the percentage of disability benefit recipients to the total number of West Virginia State Police employees who are members of the fund. The report shall be submitted to the Governor and the chairpersons of the standing committees of the Senate and House of Delegates with primary responsibility for retirement legislation.
§15-2-32. Retirant not to exercise police authority; retention of group insurance. A retirant may not exercise any of the powers conferred upon active employees by section twelve of this article; but is entitled to receive free of cost to the retirant and retain as his or her separate property one complete standard uniform prescribed by section ten of this article: Provided, That the uniform may be worn by a retirant on occasions prescribed by the superintendent. The superintendent shall maintain at public expense for the benefit of all retirants that group life insurance mentioned in section ten of this article. The superintendent, when he or she is of opinion that the public safety shall require, may recall to active duty during any period determined by the superintendent, any retiree who is retired under the provisions of section twenty-seven of this article, provided the consent of the retiree to reassume duties of active membership shall first be obtained. Any retirant who resumes status of active membership is not entitled to receive retirement pay or benefits, but in lieu thereof, is entitled to receive that rate of salary and allowance pertinent to the rank or grade previously held by the retirant. When the former retirant is released from active duty, he or she shall reassume the status of retirement and shall be entitled to receive appropriate benefits as provided by this article: Provided, That the amount of the benefits shall in no event be less than the amount determined by the order of the board previously made in his or her behalf.
§15-2-33. Awards and benefits to dependents of member when the member dies in performance of duty; to dependents of a duty disability retirant; dependent child scholarship and amount. (a) The surviving spouse or the dependent child or children or dependent parent or parents of any member who has lost or loses his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of employees while the member was or is engaged in the performance of his or her duties as an employee of the agency, or if a retirant dies from any cause after having been retired pursuant to the provisions of section twenty-nine of this article, the surviving spouse or other dependent is entitled to receive and shall be paid from the fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime the greater of one or the other of two amounts: (1) An amount equal to five and one-half percent of the total salary which was or would have been earned by the deceased member or duty disability retirant during twenty-five years of service based on the average earnings of the member or duty disability retirant while employed by the agency; or (2) The sum of $6,000. (b) In addition, the surviving spouse is entitled to receive and shall be paid $100 monthly for each dependent child or children. If the surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each dependent child or children from the fund a sum equal to twenty-five percent of the surviving spouse's entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member or retirant during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive. (c) Any person qualified as a surviving dependent child under this section, in addition to any other benefits due under this or other sections of this article, is entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding $7,500 per year, shall be paid from the fund to any higher education institution in this state, career-technical education provider in this state or other entity in this state approved by the board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of those institutions so long as the recipient makes application to the board on an approved form and under rules as provided by the board and maintains scholastic eligibility as defined by the institution or the board. The board may, by appropriate rules, define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section. Scholarship benefits awarded pursuant to this subsection are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order. (d) A surviving spouse or dependent of an employee meeting the requirements of this section is entitled to receive beneficiary payments on the first day following the date the deceased employee is removed from payroll by the agency. A surviving spouse or dependent of a member who is not currently an employee meeting the requirements of this section is entitled to receive beneficiary payments on the first day following the date of the deceased member's death. A surviving spouse or dependent of a retirant meeting the requirements of this section is entitled to receive beneficiary payments on the first day of the month following the date of the deceased retirant's death. Upon receipt of properly executed forms from the agency and the surviving spouse or dependent, the board shall process the surviving spouse or dependent benefit as soon as administratively feasible. (e) For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
§15-2-33a. Awards and benefits to dependents of member -- Termination. When any surviving spouse of a member shall die or remarry while receiving or being entitled to receive any benefits under any section except section thirty-three of this article, the surviving spouse may not from the date of his or her remarriage, nor may the deceased member's estate from the date of death of the surviving spouse, be entitled to receive any benefits hereunder whatsoever: Provided, That in any case where under the terms of this article benefits are provided for a child or children surviving the death or remarriage of the surviving spouse, payment of benefits to that child or children shall be calculated for payment from the date the surviving spouse dies or remarries.
§15-2-34. Awards and benefits to dependents of employee when the employee dies from nonservice-connected causes. (a) If an employee of the agency, before having completed twenty years of service as an employee of the agency, dies from any cause other than those specified in this article and not due to vicious habits, intemperance or willful misconduct on his or her part, there shall be paid annually in equal monthly installments from the fund to the surviving spouse of the employee during his or her lifetime, or until such time as the surviving spouse remarries, a sum equal to two and three-quarters percent of the total salary which would have been earned by the employee during twenty-five years of service with the agency based on his or her average earnings while employed with the agency. If there is no surviving spouse, or the surviving spouse dies or remarries, there shall be paid monthly to each dependent child or children from the fund, a sum equal to twenty-five percent of the surviving spouse's entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased employee during their joint lifetimes, a sum equal to the amount which a surviving spouse would have been entitled to receive: Provided, That when there is only one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive. (b) A surviving spouse or dependent meeting the requirements of this section is entitled to receive beneficiary payments on the first day following the date the deceased employee is removed from payroll by the agency. Upon receipt of properly executed forms from the agency and the surviving spouse or dependent, the board shall process the surviving spouse or dependent benefit as soon as administratively feasible. (c) For the purposes of this section, the term "salary" does not include compensation paid for overtime service.
§15-2-35. Awards and benefits to dependents of retirant or after an employee serves twenty years. (a) When any employee of the agency has completed twenty years of service or longer as an employee of the agency and has died or dies from any cause or causes other than those specified in this article before having been retired by the board, and when a retirant has died or dies after having been retired by the board under the provisions of this article, there shall be paid annually in equal monthly installments from the fund to the surviving spouse of the employee or retirant during the lifetime or until remarriage of the surviving spouse, an amount equal to three-fourths the retirement benefits the deceased retirant was receiving or would have been entitled to receive while in status of retirement, or would have been entitled to receive to the same effect as if the employee had been retired under the provisions of this article immediately prior to the time of his or her death and in no event to be less than $5,000, unless otherwise required under this article, and in addition the surviving spouse shall be entitled to receive and shall be paid from the fund the sum of $100 monthly for each dependent child or children. If the surviving spouse dies or remarries or if there is no surviving spouse, there shall be paid monthly from the fund to each dependent child or children of the deceased employee or retirant a sum equal to twenty-five percent of the surviving spouse's entitlement. If there is no surviving spouse or no surviving spouse eligible to receive benefits and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased employee or retirant during their joint lifetimes a sum equal to the amount which a surviving spouse without children would have been entitled to receive: Provided, That when there is only one dependent parent surviving, the parent shall be entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive. (b) A surviving spouse or dependent of an employee meeting the requirements of this section is entitled to receive beneficiary payments on the first day following the date the deceased employee is removed from payroll by the agency. A surviving spouse or dependent of a retirant meeting the requirements of this section is entitled to receive beneficiary payments on the first day of the month following the date of the deceased retirant's death. Upon receipt of properly executed forms from the agency and the surviving spouse or dependent, the board shall process the surviving spouse or dependent benefit as soon as administratively feasible.
§15-2-35a. Authority to continue payments to certain dependents. The board may continue payments of a surviving spouse's entitlement in full to any dependent children who continue to be dependent by reason of mental or physical incapacity as determined by the board notwithstanding the age of the dependent child or other provisions of this article.
§15-2-36. Awards and benefits to dependents of member -- Termination. When any surviving spouse of a member shall die or remarry while receiving or being entitled to receive any benefits under any section except section thirty-three of this article, such surviving spouse shall not from the date of such remarriage, nor shall the estate from the date of death of such surviving spouse be entitled to receive any benefits hereunder whatsoever: Provided, That in any case where under the terms of this article benefits are provided for a child or children surviving the death or remarriage of such surviving spouse, payment of such benefits to such child or children shall be calculated for payment from the date such surviving spouse shall die or remarry.
§15-2-37. Refunds to certain employees upon discharge or resignation; deferred retirement. (a) Any employee who is discharged by order of the superintendent or otherwise terminates employment with the agency, at the written request of the member to the board, is entitled to receive from the fund a sum equal to the aggregate of the principal amount of moneys deducted from his or her salary and paid into the fund plus four percent interest compounded thereon calculated annually as provided and required by this article. (b) Any member withdrawing contributions who may thereafter be reemployed by the agency shall not receive any prior service credit in the fund on account of former service. The employee may redeposit in the fund established in article two-a of this chapter the amount of the refund, together with interest thereon at the rate of seven and one-half percent per annum from the date of withdrawal to the date of redeposit, in which case he or she shall receive the same credit on account of his or her former service as if no refund had been made. He or she shall become a member of the retirement system established in article two-a of this chapter. (c) Every employee who completes ten years of service with the agency is eligible, upon separation of employment, either to withdraw his or her contributions in accordance with subsection (a) of this section or to choose not to withdraw his or her accumulated contributions with interest. Upon attainment of age sixty-two, a member who chooses not to withdraw his or her contributions is eligible to receive a retirement annuity. Any member choosing to receive the deferred annuity under this subsection is not eligible to receive the annual annuity adjustment provided in section twenty-seven-a of this article. When the board retires any member under any of the provisions of this section, the member is entitled to receive annually and shall be paid from the fund in equal monthly installments during the lifetime of the member while in status of retirement one or the other of two amounts, whichever is greater, subject to reduction if necessary to comply with the maximum benefit provisions of Section 415 of the Internal Revenue Code and section forty-four of this article: (1) An amount equal to five and one-half percent of the aggregate of salary paid to the employee during the whole period of service as an employee of the agency; or (2) The sum of $6,000. (d) A member may choose, in lieu of a life annuity available under the provisions of subsection (c) of this section, an annuity in a reduced amount payable during the member's lifetime, with one half of the reduced monthly amount paid to his or her surviving spouse, for the spouse's remaining lifetime after the death of the retirant. Reduction of this monthly benefit amount shall be calculated to be of equal actuarial value to the life annuity the member could otherwise have chosen. (e) A member retiring under the provisions of this section may receive retirement annuity payments on the day following his or her attaining age sixty-two. Upon receipt of properly executed forms from the agency and the member, the board shall process the member's retirement benefit and commence annuity payments as soon as administratively feasible.
§15-2-38. Refund to dependents upon death of member not eligible for benefits. If any member dies and the board is of the opinion after hearing that the dependent or dependents of the member are ineligible under the provisions of this article to receive any of the benefits provided herein, the board shall refund to the spouse, if surviving, but if not surviving, to the children of the member, and if there is no surviving spouse or children, to the dependent parents, a sum equal to the aggregate of the principal amount of all moneys deducted from the salary of the member and paid into the fund. If there is no surviving spouse or children or dependent parent or parents, then a sum equal to the aggregate of the principal amount of all moneys deducted from the salary of the member and paid into the fund will be paid to the member's estate. Whenever a refund is made to the surviving spouse or other dependents of the deceased member, the surviving spouse or other dependents shall not be entitled to any other rights or benefits from the fund.
§15-2-39. Dependent child or children. In any case where under the terms of this article benefits are provided for dependent child or children, the benefits shall be paid for so long as they continue to meet the qualifications provided under the provisions of this article.
§15-2-39a. Limitations on benefit increases. (a) The state shall not increase any existing benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature. (b) If any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in any of the West Virginia state sponsored pension systems as calculated in the annual actuarial valuation for the plan during any fiscal year, the additional unfunded actuarial accrued liability of the system shall be fully amortized over no more than the six consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. Following the receipt of the certification of additional actuarial accrued liability, the Governor shall submit the amount of the amortization payment each year for the system as part of the annual budget submission or in an executive message to the Legislature. (c) Notwithstanding the provisions of subsections (a) and (b) of this section, the computation of annuities or benefits for active members due to retirement, death or disability as provided for in the system shall not be amended in such a manner as to increase any existing benefits or to provide for new benefits. (d) The provisions of this section terminate effective July 1, 2025: Provided, That if bonds are issued pursuant to article eight, chapter twelve of this code, the provisions of this section shall not terminate while any of the bonds are outstanding.
§15-2-40. Commission on drunk driving prevention created; members; quorum; meetings. There is hereby created within the department of public safety the commission on drunk driving prevention which shall consist of eight members as follows: The superintendent of the department of public safety; the commissioner of the department of motor vehicles; the Alcohol Beverage Control Commissioner; the Governor's representative for highway safety; a prosecuting attorney appointed by the Governor from a list of three prosecuting attorneys submitted by the prosecuting attorney's association; a county sheriff appointed by the Governor from a list of three county sheriffs submitted by the county sheriff's association; a municipal police officer appointed by the Governor from a list of three officers submitted by the state fraternal order of police; a lay citizen of the state appointed by the Governor, who has demonstrated an interest in the prevention of drunk driving. The superintendent of the department of public safety shall be the chairman, ex officio, of the commission and shall provide the necessary staff and meeting facilities to the commission. The appointed members shall serve for a term of two years and may be reappointed. Any appointed member who ceases to occupy the position which qualifies him for the appointment shall immediately vacate his membership on the commission. Each member shall serve until the appointment of his successor. No member shall receive any compensation, but shall be reimbursed for actual and necessary expenses incurred in the performance of his duties. A majority of the members of the commission shall constitute a quorum for the transaction of business. Meetings shall be held at the call of the chairman or of a majority of its members.
§15-2-41. Powers and duties of commission; rule-making authority; monitoring and reporting. The commission shall have the following powers and duties: (a) Develop and maintain a comprehensive program to prevent drunk driving and to enhance the enforcement of laws defining drunk driving offenses. (b) Inquire and determine from state and local law- enforcement agencies the availability and need for equipment and additional personnel for the effective enforcement of laws defining drunk driving offenses. (c) Subject to appropriations of the Legislature, administer the drunk driving prevention fund created by the provisions of section sixteen, article fifteen, chapter eleven of this code by providing grants to state and local law- enforcement agencies for the purchase of equipment or hiring of additional personnel for the effective enforcement of laws defining drunk driving offenses and such other items as the commission may define by legislative rule to be reasonable and necessary. (d) Promulgate rules to guide and administer said fund and to establish procedures and criteria for grants to state and local law-enforcement agencies under this section, in accordance with the provisions of article three, chapter twenty-nine-a of this code. (e) Monitor, review and evaluate the expenditure, use and effectiveness of the fund and report to the Legislature annually on the exercise of its powers and duties under this section, including an annual accounting of expenditures and of the grants made under this section.
§15-2-42. Drunk driving enforcement program established; purpose. The superintendent of the department shall establish and maintain a drunk driving enforcement program for the purpose of enforcing drunk driving laws in the state, especially the investigation and apprehension of persons driving illegally on previously revoked or suspended operators' licenses for drunk driving related offenses. The superintendent shall develop a program in cooperation with local law-enforcement agencies to accomplish this purpose.
§15-2-43. Awarding service revolver upon retirement and disposal of service weapon when replaced due to routine wear. (a) Upon the retirement of a member of the West Virginia state police, the superintendent shall award to the retiring member his or her service revolver, without charge, upon determining: (1) That the retiring member is retiring honorably with at least twenty years of service; or (2) Such retiring member is retiring with less than twenty years of service based upon a determination that such member is totally physically disabled as a result of his or her service with the West Virginia state police. (b) Notwithstanding the provisions of subsection (a) of this section, the superintendent may not award his or her service revolver to any member whom the superintendent finds to be mentally incapacitated or who constitutes a danger to any person or the community. (c) The disposal of state police service weapons, when replaced due to routine wear, shall not fall under the jurisdiction of the agency for surplus property, within the Purchasing Division of the Department of Administration. The superintendent may offer these surplus weapons for sale to any active or retired member of the State Police, at fair market value, with the proceeds from any sales used to offset the cost of the new weapons.
§15-2-44. Federal law maximum benefit limitations. Notwithstanding any other provision of this article or state law, the board shall administer the fund in compliance with the limitations of Section 415 of the Internal Revenue Code and regulations under that section to the extent applicable to governmental plans (hereafter sometimes referred to as the "415 limitation(s)" or "415 dollar limitation(s)"), so that the annual benefit payable under this system to a member shall not exceed those limitations. Any annual benefit payable under this system shall be reduced or limited if necessary to an amount which does not exceed those limitations. The extent to which any annuity or other annual benefit payable under this fund shall be reduced, as compared with the extent to which an annuity, contributions or other benefits under any other defined benefit plans or defined contribution plans required to be taken into consideration under Section 415 of the Internal Revenue Code shall be reduced, shall be proportional on a percentage basis to the reductions made in such other plans administered by the board and required to be so taken into consideration under Section 415, unless a disproportionate reduction is determined by the board to maximize the aggregate benefits payable to the member. If the reduction is under this fund, the board shall advise affected members or retirants of any additional limitation on the annuities or other annual benefit required by this section. For purposes of the 415 limitations, the "limitation year" shall be the calendar year. The 415 limitations are incorporated herein by reference, except to the extent the following provisions may modify the default provisions thereunder: (a) The annual adjustment to the 415 dollar limitations made by Section 415(d) of the Internal Revenue Code and the regulations thereunder shall apply for each limitation year. The annual adjustments to the dollar limitations under Section 415(d) of the Internal Revenue Code which become effective: (i) After a retirant's severance from employment with the employer; or (ii) after the annuity starting date in the case of a retirant who has already commenced receiving benefits, will apply with respect to a retirant's annual benefit in any limitation year. A retirant's annual benefit payable in any limitation year from this retirement fund shall in no event be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code and the regulations thereunder. (b) For purposes of this section, the "annual benefit" means a benefit that is payable annually in the form of a straight life annuity. Except as provided below, where a benefit is payable in a form other than a straight life annuity, the benefit shall be adjusted to an actuarially equivalent straight life annuity that begins at the same time as such other form of benefit, using factors prescribed in the 415 limitation regulations, before applying the 415 limitations. No actuarial adjustment to the benefit shall be made for: (1) Survivor benefits payable to a surviving spouse under a qualified joint and survivor annuity to the extent such benefits would not be payable if the member's benefit were paid in another form; (2) benefits that are not directly related to retirement benefits (such as a qualified disability benefit, preretirement incidental death benefits, and post-retirement medical benefits); or (3) the inclusion in the form of benefit of an automatic benefit increase feature, provided the form of benefit is not subject to Section 417(e)(3) of the Internal Revenue Code and would otherwise satisfy the limitations of this article, and the plan provides that the amount payable under the form of benefit in any limitation year shall not exceed the limits of this article applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code. For this purpose an automatic benefit increase feature is included in a form of benefit if the form of benefit provides for automatic, periodic increases to the benefits paid in that form. (c) Adjustment for benefit forms not subject to Section 417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection if the form of the member's benefit is either: (1) A nondecreasing annuity (other than a straight life annuity) payable for a period of not less than the life of the member (or, in the case of a qualified preretirement survivor annuity, the life of the surviving spouse); or (2) an annuity that decreases during the life of the member merely because of: (i) The death of the survivor annuitant (but only if the reduction is not below fifty percent of the benefit payable before the death of the survivor annuitant); or (ii) the cessation or reduction of Social Security supplements or qualified disability payments (as defined in Section 411(a)(9) of the Internal Revenue Code). The actuarially equivalent straight life annuity is equal to the greater of: (I) The annual amount of the straight life annuity (if any) payable to the member under the plan commencing at the same annuity starting date as the member's form of benefit; and (II) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date. (d) Adjustment for benefit forms subject to Section 417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection if the form of the member's benefit is other than a benefit form described in subdivision (c) of this section. In this case, the actuarially equivalent straight life annuity shall be determined as follows: The actuarially equivalent straight life annuity is equal to the greatest of: (1) The annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using the interest rate specified in this retirement fund and the mortality table (or other tabular factor) specified in this retirement fund for adjusting benefits in the same form; (2) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five and a half percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date; and (3) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using the applicable interest rate defined in Treasury Regulation §1.417(e)-1(d)(3) and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), divided by 1.05. (e) Benefits payable prior to age sixty-two. -(1) Except as provided in paragraphs (2) and (3) of this subdivision, if the member's retirement benefits become payable before age sixty-two, the 415 dollar limitation prescribed by this section shall be reduced in accordance with regulations issued by the Secretary of the Treasury pursuant to the provisions of Section 415(b) of the Internal Revenue Code, so that the limitation (as so reduced) equals an annual straight life benefit (when the retirement income benefit begins) which is equivalent to an annual benefit in the amount of the applicable dollar limitation of Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted pursuant to Section 415(d) of the Internal Revenue Code) beginning at age sixty-two. (2) The limitation reduction provided in paragraph (1) of this subdivision shall not apply if the member commencing retirement benefits before age sixty-two is a qualified participant. A qualified participant for this purpose is a participant in a defined benefit plan maintained by a state, or any political subdivision of a state, with respect to whom the service taken into account in determining the amount of the benefit under the defined benefit plan includes at least fifteen years of service: (i) As a full-time employee of any police or fire department organized and operated by the state or political subdivision maintaining the defined benefit plan to provide police protection, firefighting services or emergency medical services for any area within the jurisdiction of such state or political subdivision; or (ii) as a member of the Armed Forces of the United States. (3) The limitation reduction provided in paragraph (1) of this subdivision shall not be applicable to preretirement disability benefits or preretirement death benefits. (4) For purposes of adjusting the 415 dollar limitation for benefit commencement before age sixty-two or after age sixty-five (if the plan provides for such adjustment), no adjustment is made to reflect the probability of a member's death: (i) After the annuity starting date and before age sixty-two; or (ii) after age sixty-five and before the annuity starting date. (f) Adjustment when member has less than ten years of participation. -- In the case of a member who has less than ten years of participation in the retirement fund (within the meaning of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar limitation (as adjusted pursuant to Section 415(d) of the Internal Revenue Code and subdivision (e) of this section) shall be reduced by multiplying the otherwise applicable limitation by a fraction, the numerator of which is the number of years of participation in the plan (or one, if greater), and the denominator of which is ten. This adjustment shall not be applicable to preretirement disability benefits or preretirement death benefits. (g) The application of the provisions of this section shall not cause the maximum annual benefit provided to a member to be less than the member's accrued benefit as of December 31, 2008 (the end of the limitation year that is immediately prior to the effective date of the final regulations for this retirement system as defined in Treasury Regulation §1.415(a)-1(g)(2)), under provisions of the retirement system that were both adopted and in effect before April 5, 2007, provided that such provisions satisfied the applicable requirements of statutory provisions, regulations, and other published guidance relating to Section 415 of the Internal Revenue Code in effect as of December 31, 2008, as described in Treasury Regulation §1.415(a)-1(g)(4). If additional benefits are accrued for a member under this retirement system after January 1, 2009, then the sum of the benefits described under the first sentence of this subsection and benefits accrued for a member after January 1, 2009, must satisfy the requirements of Section 415, taking into account all applicable requirements of the final 415 Treasury Regulations.
§15-2-45. Federal law minimum required distributions. The requirements of this section apply to any distribution of a member’s or beneficiary’s interest and take precedence over any inconsistent provisions of this code. This section applies to plan years beginning after December 31, 1986. Notwithstanding anything in the retirement system to the contrary, the payment of benefits under this article shall be determined and made in accordance with Section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder as applicable to governmental plans. Any term used in this article has the same meaning as when used in a comparable context in Section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder unless a different meaning is clearly required by the context or definition in this article. The following provisions apply to payments of benefits required under this article: (a) The payment of benefits under the fund to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under Section 401(a)(9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary, or over a period not extending beyond the life expectancy of the member and his or her beneficiary: Provided, That the requirements of this section may not be construed to grant a right to a form of benefit which is not otherwise available to a particular member under this retirement system. For purposes of this section, the term “required beginning date” means April 1 of the calendar year following the later of: (i) The calendar year in which the member attains age seventy and one-half; or (ii) the calendar year in which the member retires or otherwise ceases providing covered service under this fund. Benefit payments under this section shall not be delayed pending, or contingent upon, receipt of an application for retirement from the member. (b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the retirement system has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his or her death. (c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the fund is to be distributed by December 31 of the calendar year containing the fifth anniversary of the member’s death, unless the provisions of subsection (d) of this section apply. (d) If a member dies before distribution to him or her has commenced, and the member’s interest is eligible to be paid in the form of a survivor annuity to a designated beneficiary, distributions are to be made over the life of that beneficiary or over a period certain not greater than the life expectancy of that beneficiary, commencing on or before the following: (1) December 31 of the calendar year immediately following the calendar year in which the member died; or (2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving one hundred percent of the survivor benefit, distributions are to commence on or before the later of: (A) December 31 of the calendar year in which the member would have attained age seventy and one-half; or (B) December 31 of the calendar year immediately following the calendar year in which the member died. (e) If a member dies before distribution to him or her has commenced and the survivor annuity provisions of subsection (d) of this section are not applicable, any designated beneficiary who is eligible to receive a distribution pursuant to the provisions of subsection (c) of this section may elect to have life expectancy treatment apply to the distribution for purposes of determining whether any portion of the distribution is an eligible rollover distribution: Provided, That any such election shall not delay the required distribution of the deceased member’s entire interest in the retirement system beyond December 31 of the calendar year containing the fifth anniversary of the member’s death as required by subsection (c) of this section: Provided, however, That the election is timely made in a form acceptable to the board on or before the following: (1) December 31 of the calendar year immediately following the calendar year in which the member died; or (2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving one hundred percent of the survivor benefit, election of life expectancy treatment must be made on or before the earlier of (A) or (B) below: (A) The later of: (i) December 31 of the calendar year immediately following the calendar year in which the member died; or (ii) December 31 of the calendar year in which the member would have attained age seventy and one-half; or (B) October 31 of the calendar year containing the fifth anniversary of the member’s death.
§15-2-46. Direct rollovers. (a) Except where otherwise stated, this section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee's election under this fund, a distributee may elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution that is equal to at least $500 paid directly to an eligible retirement plan specified by the distributee in a direct rollover. For purposes of this section, the following definitions apply: (1) "Eligible rollover distribution" means any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include any of the following: (i) Any distribution that is one of a series of substantially equal periodic payments not less frequently than annually made for the life or life expectancy of the distributee or the joint lives or the joint life expectancies of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; (ii) any distribution to the extent the distribution is required under Section 401(a)(9) of the Internal Revenue Code; (iii) the portion of any distribution that is not includable in gross income determined without regard to the exclusion for net unrealized appreciation with respect to employer securities; (iv) any hardship distribution described in Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other distribution or distributions that are reasonably expected to total less than $200 during a year. For distributions after December 31, 2001, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includable in gross income. However, this portion may be paid only to an individual retirement account or annuity described in Section 408(a) or (b) of the Internal Revenue Code, or (for taxable years beginning before January 1, 2007) to a qualified trust which is part of a defined contribution plan described in Section 401(a) or (for taxable years beginning after December 31, 2006) to a qualified trust or to an annuity contract described in Section 403(a) or(b) of the Internal Revenue Code that agrees to separately account for amounts transferred (including interest or earnings thereon), including separately accounting for the portion of the distribution which is includable in gross income and the portion of the distribution which is not so includable, or (for taxable years beginning after December 31, 2007) to a Roth IRA described in Section 408A of the Internal Revenue Code. (2) "Eligible retirement plan" means an individual retirement account described in Section 408(a) of the Internal Revenue Code, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code, or a qualified plan described in Section 401(a) of the Internal Revenue Code, that accepts the distributee's eligible rollover distribution: Provided, That in the case of an eligible rollover distribution prior to January 1, 2002, to the surviving spouse, an eligible retirement plan is limited to an individual retirement account or individual retirement annuity. For distributions after December 31, 2001, an eligible retirement plan also means an annuity contract described in Section 403(b) of the Internal Revenue Code and an eligible plan under Section 457(b) of the Internal Revenue Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into the plan from this system. For distributions after December 31, 2007, an eligible retirement plan also means a Roth IRA described in Section 408A of the Internal Revenue Code: Provided, That in the case of an eligible rollover distribution after December 31, 2007, to a designated beneficiary (other than a surviving spouse) as such term is defined in Section 402(c)(11) of the Internal Revenue Code, an eligible retirement plan is limited to an individual retirement account or individual retirement annuity which meets the conditions of Section 402(c)(11) of the Internal Revenue Code. (3) "Distributee" means a member. In addition, the member's surviving spouse and the member's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans, are distributees with regard to the interest of the spouse or former spouse. For distributions after December 31, 2007, "distributee" also includes a designated beneficiary (other than a surviving spouse) as such term is defined in Section 402(c)(11) of the Internal Revenue Code. (4) "Direct rollover" means a payment by the system to the eligible retirement plan. (b) Nothing in this section may be construed as permitting rollovers into this fund or any other retirement system administered by the board.
§15-2-47. Federal qualification requirements. This retirement system is intended to meet the requirements of Section 401(a) of the Internal Revenue Code as applicable to governmental plans. Notwithstanding any other provision of state law, the board shall administer the retirement system to fulfill this intent for the exclusive benefit of the members and their beneficiaries. Any provision of this article referencing or relating to these federal qualification requirements shall be effective as of the date required by federal law. The board may promulgate rules and amend or repeal conflicting rules in accordance with the authority granted to the board pursuant to section one, article ten-d of chapter five to assure compliance with this section.
§15-2-48. Specification of actuarial assumptions. The board shall specify and adopt all actuarial assumptions for the fund at its first meeting of every calendar year or as soon thereafter as may be practicable, which assumptions shall become part of the terms of the fund.
§15-2-49. Benefits not forfeited if system terminates. If the fund is terminated or contributions are completely discontinued, the rights of all members to benefits accrued or contributions made to the date of such termination or discontinuance, to the extent then funded, are not forfeited.
§15-2-50. Repealed. Acts, 2010 Reg. Sess., Ch. 32.
§15-2-51. State police reemployment. (a) The Legislature finds: (1) That the West Virginia state police is currently suffering from an unacceptably high number of vacant trooper positions, and that given the time factors and expense associated with the hiring and training of personnel with no prior law-enforcement experience, it is in the interest of the state to reemploy recently retired troopers in order to fill vacant positions; (2) That no pension rights of any kind shall accrue or attach pursuant to reemployment under this section; (3) That the State Police shall bear no responsibility for medical payments for work related injuries or illnesses of employees hired pursuant to this section, other than those commonly associated with state employees covered by workers' compensation. (b) Notwithstanding any provision of this code to the contrary, any member of the West Virginia state police honorably retired pursuant to the provisions of section twenty-seven of this article between December 1,1997 and December 1, 2002, may, at the discretion of the superintendent and subject to executive order of the Governor specifying circumstances warranting such reemployment and establishing beginning and end dates for such reemployment, be reemployed subject to the provisions of this section. (c) Notwithstanding any provision of this code to the contrary, any honorably retired member of the State Police who qualifies for reemployment pursuant to the provisions of this section and who is not currently certified as a law-enforcement officer under section five, article twenty-nine, chapter thirty of this code may be deemed to have met the entry level lawenforcement recertification requirements of 149 CSR 215, Section 15.3, upon successful completion of a course of instruction prescribed by the superintendent. Such course of instruction shall include at a minimum the following subject areas: Firearms training and certification, defensive driving, mechanics of arrest, law of arrest search and seizure, West Virginia motor vehicle law, criminal law update, and domestic crimes. (d) Any member reemployed pursuant to the provisions of this section shall hold the nonsupervisory rank of corporal and shall receive the same compensation as a regularly enlisted member of the same rank. For purposes of determining length of service pursuant to section five of this article, any member reemployed pursuant to this section shall receive credit for all years of service accrued prior to their retirement, as well as service rendered after reemployment. Any member reemployed pursuant to this section shall exercise the same authority as a regularly enlisted member of the State Police, shall wear the same uniform and insignia, shall be subject to the same oath, shall execute the same bond, shall exercise the same powers and shall be subject to the same limitations as a regularly enlisted member of the State Police. (e) Any member reemployed pursuant to the provisions of this section shall not be eligible for promotion or reclassification of any type, nor shall he or she be eligible for appointment to temporary rank pursuant to the provisions of section four of this article. (f) Any reemployment offered subject to the provisions of this section shall be for a period not exceeding five years from the effective date of this section. (g) Any retired member applying for reemployment under this section shall be required to pass such mental and physical examinations, and meet such other requirements as may be provided for in rules promulgated by the superintendent pursuant to this section. (h) Notwithstanding the provisions of section ten of this article, the superintendent shall make provisions for coverage of personnel employed pursuant to this section by the workers' compensation division, Bureau of Employment Programs. In the event a member reemployed pursuant to this section sustains an illness or injury which is work related in origin, any cost associated with the treatment of same shall be defrayed in this manner and not from state police funds. (i) In the event a work related illness or injury, as described within subsection (h) above, renders a member of the division employed pursuant to the provisions of this section permanently physically or mentally disabled, the provisions of subsections (a) and (b), section twenty-nine of this article shall apply, and the member's existing pension shall be recalculated as though the disabling event had occurred coincident with the member's original retirement. Any change in benefits resulting from this recalculation shall not be retroactive in nature. The provisions of subsection (c), section twenty-nine of this article shall not apply with respect to payments for medical, surgical, laboratory, X-ray, hospital, ambulance and dental expenses and fees. Neither shall the provisions of this subsection apply in the event the member is disabled due to some cause or event which is determined not to be work related. (j) Any individual reemployed pursuant to this section is not eligible to contribute to any pension plan administered by the Consolidated Public Retirement Board, nor may he or she establish or accrue any new pension eligibility pursuant to such reemployment. (k) Notwithstanding any provision of this code to the contrary, any member reemployed pursuant to this section shall serve at the will and pleasure of the superintendent, and is subject to termination without cause. Any member reemployed pursuant to this section shall not be included in the classified service of the civil service system. (l) Notwithstanding any provision of this code to the contrary, compensation paid to any member reemployed pursuant to this section shall be in addition to any retirement payments or pension benefits which he or she is already entitled to receive under section twenty-seven of this article. (m) The provisions of this section shall terminate on April 1, 2004.
§15-2-52. Termination of benefits; procedures. (a) Whenever the board determines that a person seeking benefits under the provisions of this article has made false representation of a material fact in support of applying for or retaining benefits or has falsified or permitted to be falsified any record or records of the retirement system in support of benefits, the board shall terminate any present benefit approved as a result of the false statement or record. In addition, the board shall initiate appropriate action to recover any benefits paid by virtue of the false representation. (b) Any termination of benefits pursuant to this section may be appealed pursuant to the state administrative procedures act in chapter twenty-nine-a of this code. The board may promulgate rules in accordance with the provisions of article three of said chapter regarding the procedure for termination of benefits and any repayment of benefits.
§15-2-53. State law-enforcement association members annual leave program. (a) Notwithstanding any provision of this code to the contrary, members of the largest statewide professional law-enforcement association representing members of the West Virginia State Police may donate annual leave time to the president of the association. The president may designate the vice president of the association or the chairman of the association's board of directors to act on his or her behalf. The West Virginia State Police will calculate the dollar value of the donated leave based on the hourly rate of the donor multiplied by the number of hours of annual leave to be donated and the donee will use the annual leave at the present dollar value of the donee's hourly rate. The donated annual leave may be used by the president or designee in the performance of his or her duties including: (1) Assistance to members; and (2) the legislative session and legislative meetings. (b) When the president of the association or his or her designee uses the donated annual leave he or she is considered on personal annual leave of absence with pay just as if he or she used his or her annual leave. While the president of the association or his or her designee are using donated annual leave, all payroll deductions and employee status are maintained as if he or she had used his or her regularly accrued annual leave. All donated leave that is not used by July 1 of every year will be forfeited to the state and no unused donated leave may be used to add to the president's or his or her designee's retirement. (c) No member of the association shall be considered absent from service as a member of the West Virginia State Police while serving as president of the association, or as his or her designee in that capacity: Provided, That the period of service credit granted for that service shall not exceed ten years: Provided, however, That a member of the West Virginia State Police Retirement System who is serving or has served as president of the association, or as his or her designee, shall make deposits to the West Virginia State Police Retirement Fund, for the time of any absence, in an amount equal to the sum of the amount which both the employer and the employee would have contributed in his or her regular assignment for a like period of time: Provided further, That if the president of the association, or his or her designee, is a member of the West Virginia State Police Death, Disability and Retirement Fund, he or she may not receive service credit for time spent serving as president or the president's designee.
§15-2-54. Correction of errors; underpayments; overpayments. (a) General rule: Upon learning of any errors, the board shall correct errors in the system in a timely manner whether the individual, entity or board was at fault for the error with the intent of placing the affected individual, entity and retirement board in the position each would have been in had the error not occurred. (b) Underpayments to the system: Any error resulting in an underpayment to the system may be corrected by the member or retirant remitting the required employee contribution or underpayment and the employer remitting the required employer contribution or underpayment. Interest shall accumulate in accordance with the legislative rule 162 CSR 7 concerning retirement board refund, reinstatement, retroactive service, loan and correction of error interest factors and any accumulating interest owed on the employee and employer contributions or underpayments resulting from an employer error is the responsibility of the employer. The employer may remit total payment and the employee reimburse the employer through payroll deduction over a period equivalent to the time period during which the employer error occurred. If the correction of an error involving an underpayment to the system will result in the system correcting an erroneous underpayment from the system, the correction of the underpayment from the system shall be made only after the board receives full payment of all required employee and employer contributions or underpayments, including interest. (c) Overpayments to the system by an employer: When mistaken or excess employer contributions, including any overpayments have been made to the system by the employer, the board shall credit the employer with an amount equal to the overpayment, to be offset against the employer's future liability for employer contributions to the system. If the employer has no future liability for employer contributions to the retirement system, the board shall refund the erroneous contributions directly to the employer. Earnings or interest shall not be returned, offset or credited to the employer under any of the means used by the board for returning employer overpayments to the retirement system. (d) Overpayments to the system by an employee: When mistaken or excess employee contributions or overpayments have been made to the system, the board shall have sole authority for determining the means of return, offset or credit to or for the benefit of the individual making the mistaken or excess employee contribution of the amounts, and may use any means authorized or permitted under the provisions of section 401(a), et seq. of the Internal Revenue Code and guidance issued thereunder applicable to governmental plans. Alternatively, in its full and complete discretion, the board may require the employer employing the individual to pay the individual the amounts as wages, with the board crediting the employer with a corresponding amount to offset against its future contributions to the plan. If the employer has no future liability for employer contributions to the system, the board shall refund said amount directly to the employer: Provided, That the wages paid to the individual shall not be considered compensation for any purposes of this article. Earnings or interest shall not be returned, offset, or credited under any of the means used by the board for returning employee overpayments. (e) Overpayments from the system: If any error results in any member, retirant, beneficiary, entity or other individual receiving from the system more than he would have been entitled to receive had the error not occurred the board, upon learning of the error, shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the member, retirant, beneficiary, entity or other person who received the overpayment from the system shall repay the amount of any overpayment to the system in any manner permitted by the board. Interest shall not accumulate on any corrective payment made to the system pursuant to this subsection. (f) Underpayments from the system: If any error results in any member, retirant, beneficiary, entity or other individual receiving from the retirement system less than he would have been entitled to receive had the error not occurred, the board, upon learning of the error, shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the board shall pay the amount of such underpayment to the member, retirant, beneficiary or other individual in a lump sum. Interest shall not be paid on any corrective payment made by the system pursuant to this subsection. (g) Eligibility errors: If the board finds that an individual, employer, or both individual and employer currently or formerly participating in the retirement system is not eligible to participate, the board shall notify the individual and his or her employer of the determination, and terminate participation in the system. Any erroneous payments to the system shall be returned to the employer and individual in accordance with the methods described in subsections (c) and (d) of this section and any erroneous payments from the system to such individual shall be returned to the system in accordance with the methods described in subsection (e) of this section. Any erroneous service credited to the individual shall be removed. If the board determines that an individual or employer, or both, has not been participating in the system, but was eligible to and required to be participating in the system, the board shall as soon as practicable notify the individual and his or her employer of the determination, and the individual and his or her employer shall prospectively commence participation in the system as soon as practicable. Service credit for service prior to the date on which the individual prospectively commences participation in the system shall be granted only if the board receives the required employer and employee contributions for such service, in accordance with subsection (b) in this section, including interest.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM. §15-2A-1. Short title. This article shall be known and may be cited as the "West Virginia State Police Retirement System Act".
§15-2A-2. Definitions. As used in this article, unless the context clearly requires a different meaning: (1) "Accumulated contributions" means the sum of all amounts deducted from base salary, together with four percent interest compounded annually. (2) "Active military duty" means full-time active duty with the armed forces of the United States, namely, the United States Air Force, Army, Coast Guard, Marines or Navy; and service with the National Guard or reserve military forces of any of the armed forces when the employee has been called to active full-time duty. (3) "Actuarially equivalent" or "of equal actuarial value" means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the retirement board in accordance with the provisions of this article: Provided, That when used in the context of compliance with the federal maximum benefit requirements of Section 415 of the Internal Revenue Code, "actuarially equivalent" shall be computed using the mortality tables and interest rates required to comply with those requirements. (4) "Agency" means the West Virginia State Police. (5) "Base salary" means compensation paid to an employee without regard to any overtime pay. (6) "Beneficiary" means a surviving spouse or other surviving beneficiary who is entitled to, or will be entitled to, an annuity or other benefit payable by the fund. (7) "Board" means the Consolidated Public Retirement Board created pursuant to article ten-d, chapter five of this code. (8) "Dependent child" means any unmarried child or children born to or adopted by a member or retirant of the fund who: (A) Is under the age of eighteen; (B) After reaching eighteen years of age, continues as a full-time student in an accredited high school, college, university or business or trade school until the child or children reaches the age of twenty-three years; or (C) Is financially dependent on the member or retirant by virtue of a permanent mental or physical disability upon evidence satisfactory to the board. (9) "Dependent parent" means the member's or retirant's parent or stepparent claimed as a dependent by the member or retirant for federal income tax purposes at the time of the member's or retirant's death. (10) "Employee" means any person regularly employed in the service of the agency as a law-enforcement officer after March 12, 1994, and who is eligible to participate in the fund. (11) "Final average salary" means the average of the highest annual compensation received for employment with the agency, including compensation paid for overtime service, received by the employee during any five calendar years within the employee's last ten years of service: Provided, That annual compensation for determining benefits during any determination period may not exceed the maximum compensation allowed as adjusted for cost of living in accordance with section seven, article ten-d, chapter five of this code and Section 401(a)(17) of the Internal Revenue Code. (12) "Fund", "plan", "system" or "retirement system" means the West Virginia State Police Retirement Fund created and established by this article. (13) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended. (14) "Law-enforcement officer" means an individual employed or otherwise engaged in either a public or private position which involves the rendition of services relating to enforcement of federal, state or local laws for the protection of public or private safety, including, but not limited to, positions as deputy sheriffs, police officers, marshals, bailiffs, court security officers or any other law-enforcement position which requires certification, but excluding positions held by elected sheriffs or appointed chiefs of police whose duties are purely administrative in nature. (15) "Member" means any person who has contributions standing to his or her credit in the fund and who has not yet entered into retirement status. (16) "Month of service" means each month for which an employee is paid or entitled to payment for at least one hour of service for which contributions were remitted to the fund. These months shall be credited to the member for the calendar year in which the duties are performed. (17) "Partially disabled" means an employee's inability, on a probable permanent basis, to perform the essential duties of a law-enforcement officer by reason of any medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months, but which impairment does not preclude the employee from engaging in other types of nonlaw-enforcement employment. (18) "Physical or mental impairment" means an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques. (19) "Plan year" means the twelve-month period commencing on July 1 of any designated year and ending the following June 30. (20) "Qualified public safety employee" means any employee of a participating state or political subdivision who provides police protection, fire fighting services or emergency medical services for any area within the jurisdiction of the state or political subdivision, or such other meaning given to the term by Section 72(t)(10)(B) of the Internal Revenue Code or by Treasury Regulation §1.401(a)-1(b)(2)(v) as they may be amended from time to time. (21) "Required beginning date" means April 1 of the calendar year following the later of: (a) The calendar year in which the member attains age seventy and one-half years; or (b) the calendar year in which he or she retires or otherwise separates from service with the agency after having attained the age of seventy and one-half years. (22) "Retirant" or "retiree" means any member who commences an annuity payable by the retirement system. (23) "Salary" means the compensation of an employee, excluding any overtime payments. (24) "Surviving spouse" means the person to whom the member or retirant was legally married at the time of the member's or retirant's death and who survived the member or retirant. (25) "Totally disabled" means an employee's probable permanent inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. For purposes of this subdivision, an employee is totally disabled only if his or her physical or mental impairments are so severe that he or she is not only unable to perform his or her previous work as an employee of the agency, but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the employee lives; (B) a specific job vacancy exists; or (C) the employee would be hired if he or she applied for work. (26) "Years of service" means the months of service acquired by a member while in active employment with the agency divided by twelve. Years of service shall be calculated in years and fraction of a year from the date of active employment of the member with the agency through the date of termination of employment or retirement from the agency. If a member returns to active employment with the agency following a previous termination of employment with the agency and the member has not received a refund of contributions plus interest for the previous employment under section eight of this article, service shall be calculated separately for each period of continuous employment and years of service shall be the total service for all periods of employment. Years of service shall exclude any periods of employment with the agency for which a refund of contributions plus interest has been paid to the member unless the employee repays the previous withdrawal, as provided in section eight of this article, to reinstate the years of service.
§15-2A-3. Continuation and administration of West Virginia State Police Retirement System; leased employees; federal qualification requirements. (a) The West Virginia State Police Retirement System is continued. It is contemplated that substantially all of the members of the retirement system shall be qualified public safety employees as defined in section two of this article. Any West Virginia state trooper employed by the agency on or after the effective date of this article shall be a member of this retirement system and may not qualify for membership in any other retirement system administered by the board so long as he or she remains employed by the State Police: Provided, That any state trooper who has concurrent employment in an additional job or jobs which would require the state trooper to be a member of the West Virginia Deputy Sheriff Retirement System, the West Virginia Municipal Police Officers and Firefighters Retirement System or the West Virginia Emergency Medical Services Retirement System shall abide by the statutory provisions of said retirement system related to concurrent employment and participate in only one retirement system administered by the board. (b) Any individual who is a leased employee shall not be eligible to participate in the system. For purposes of this system, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final power to decide the question. (c) The board created pursuant to article ten-d, chapter five of this code shall administer the retirement system. The board may sue and be sued, contract and be contracted with and conduct all the business of the system in the name of the West Virginia State Police Retirement System. (d) This fund is intended to meet the federal qualification requirements of Section 401(a) and related sections of the Internal Revenue Code as applicable to governmental plans. Notwithstanding any other provision of state law, the board shall administer the retirement system to fulfill this intent for the exclusive benefit of the employees, members, retirants and their beneficiaries. Any provision of this article referencing or relating to these federal qualification requirements shall be effective as of the date required by federal law. The board may promulgate rules and amend or repeal conflicting rules in accordance with the authority granted to the board pursuant to section one, article ten-d, chapter five of this code to assure compliance with this section.
§15-2A-4. Participation in system; continuation of fund. The West Virginia State Police Retirement Fund is continued for the benefit of the members and retirants of the system created pursuant to this article and the dependents of any deceased or retired member of the system. All moneys paid into and accumulated in the fund, except any amounts designated or set aside by the board for payments of benefits as provided in this article, shall be invested by the West Virginia Investment Management Board as provided by law.
§15-2A-4a. Specification of actuarial assumptions. The board shall specify and adopt all actuarial assumptions for the fund at its first meeting in each calendar year or as soon thereafter as may be practicable, which assumptions shall become part of the terms of the system.
§15-2A-5. Employee contributions; employer contributions; forfeitures. (a) There shall be deducted from the monthly payroll of each employee and paid into the fund created pursuant to section four of this article twelve percent of the amount of his or her salary: Provided, That after July 1, 2008, if the funding percentage of the fund determined by the board falls below the ninety-percent threshold, then the employee rate of contribution shall be increased to thirteen percent of the amount of the employee's salary until the ninety-percent or better funding level is again achieved. Once that funding level is achieved the employee contribution rate will be reduced to twelve percent. (b) The State of West Virginia's contributions to the retirement system, as determined by the board, shall be a percent of the employees' total annual base salary related to benefits under this retirement system. In determining the amount, the board shall give consideration to setting the amount at a sum equal to an amount which, if paid annually by the state, will be sufficient to provide for the total normal cost of the benefits expected to become payable to all members and retirants and to amortize any unfunded liability found by application of the actuarial funding method chosen for that purpose by the board over a period of years determined actuarially appropriate. The state's contributions shall be paid monthly into the fund created pursuant to section four of this article out of the annual appropriation for the agency. (c) Notwithstanding any other provisions of this article, forfeitures under the system shall not be applied to increase the benefits any member or retirant would otherwise receive under the system.
§15-2A-6. Retirement; commencement of benefits. (a) A member may retire with full benefits upon attaining the age of fifty and completing twenty-five or more years of service or attaining the age of fifty-two and completing twenty years or more of service by filing with the board his or her voluntary application in writing for retirement. A member who is less than age fifty-two may retire upon completing twenty years or more of service: Provided, That he or she will receive a reduced benefit that is of equal actuarial value to the benefit the member would have received if the member deferred commencement of his or her accrued retirement benefit to the age of fifty-two. (b) When the board retires a member with full benefits under the provisions of this section, the board, by order in writing, shall make a determination that the member is entitled to receive an annuity equal to two and three-fourths percent of his or her final average salary multiplied by the number of years, and fraction of a year, of his or her service at the time of retirement, subject to reduction if necessary to comply with the maximum benefit provisions of Section 415 of the Internal Revenue Code and section six-a of this article. The retirant's annuity shall begin the first day of the calendar month following the month in which the member's application for the annuity is filed with the board on or after his or her attaining age and service requirements and termination of employment. (c) In no event may the provisions of section thirteen, article sixteen, chapter five of this code be applied in determining eligibility to retire with either a deferred or immediate commencement of benefit.
§15-2A-6a. Federal law maximum benefit limitations. Notwithstanding any other provision of this article or state law, the board shall administer the retirement system in compliance with the limitations of Section 415 of the Internal Revenue Code and Treasury Regulations under that section to the extent applicable to governmental plans (hereafter sometimes referred to as the "415 limitation(s)" or "415 dollar limitation(s)"), so that the annual benefit payable under this system to a member shall not exceed those limitations. Any annual benefit payable under this system shall be reduced or limited if necessary to an amount which does not exceed those limitations. The extent to which any annuity or other annual benefit payable under this retirement system shall be reduced, as compared with the extent to which an annuity, contributions or other benefits under any other defined benefit plans or defined contribution plans required to be taken into consideration under Section 415 of the Internal Revenue Code shall be reduced, shall be proportional on a percentage basis to the reductions made in such other plans administered by the board and required to be so taken into consideration under Section 415, unless a disproportionate reduction is determined by the board to maximize the aggregate benefits payable to the member. If the reduction is under this retirement system, the board shall advise affected members or retirants of any additional limitation on the annuities or other annual benefit required by this section. For purposes of the 415 limitations, the "limitation year" shall be the calendar year. The 415 limitations are incorporated herein by reference, except to the extent the following provisions may modify the default provisions thereunder: (a) The annual adjustment to the 415 dollar limitations made by Section 415(d) of the Internal Revenue Code and the regulations thereunder shall apply for each limitation year. The annual adjustments to the dollar limitations under Section 415(d) of the Internal Revenue Code which become effective: (i) After a retirant's severance from employment with the employer; or (ii) after the annuity starting date in the case of a retirant who has already commenced receiving benefits, will apply with respect to a retirant's annual benefit in any limitation year. A retirant's annual benefit payable in any limitation year from this retirement system shall in no event be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code and the regulations thereunder. (b) For purposes of this section, the "annual benefit" means a benefit that is payable annually in the form of a straight life annuity. Except as provided below, where a benefit is payable in a form other than a straight life annuity, the benefit shall be adjusted to an actuarially equivalent straight life annuity that begins at the same time as such other form of benefit, using factors prescribed in the 415 limitation regulations, before applying the 415 limitations. No actuarial adjustment to the benefit shall be made for: (1) Survivor benefits payable to a surviving spouse under a qualified joint and survivor annuity to the extent such benefits would not be payable if the member's benefit were paid in another form; (2) benefits that are not directly related to retirement benefits (such as a qualified disability benefit, preretirement incidental death benefits, and post-retirement medical benefits); or (3) the inclusion in the form of benefit of an automatic benefit increase feature, provided the form of benefit is not subject to Section 417(e)(3) of the Internal Revenue Code and would otherwise satisfy the limitations of this article, and the plan provides that the amount payable under the form of benefit in any limitation year shall not exceed the limits of this article applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code. For this purpose an automatic benefit increase feature is included in a form of benefit if the form of benefit provides for automatic, periodic increases to the benefits paid in that form. (c) Adjustment for benefit forms not subject to Section 417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection if the form of the member's benefit is either: (1) A nondecreasing annuity (other than a straight life annuity) payable for a period of not less than the life of the member (or, in the case of a qualified preretirement survivor annuity, the life of the surviving spouse); or (2) an annuity that decreases during the life of the member merely because of: (i) The death of the survivor annuitant (but only if the reduction is not below fifty percent of the benefit payable before the death of the survivor annuitant); or (ii) the cessation or reduction of Social Security supplements or qualified disability payments (as defined in Section 411(a)(9) of the Internal Revenue Code). The actuarially equivalent straight life annuity is equal to the greater of: (I) The annual amount of the straight life annuity (if any) payable to the member under the plan commencing at the same annuity starting date as the member's form of benefit; and (II) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date. (d) Adjustment for benefit forms subject to Section 417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection if the form of the member's benefit is other than a benefit form described in subdivision (c) of this section. In this case, the actuarially equivalent straight life annuity shall be determined as follows: The actuarially equivalent straight life annuity is equal to the greatest of: (1) The annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using the interest rate specified in this retirement system and the mortality table (or other tabular factor) specified in this retirement system for adjusting benefits in the same form; (2) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five and a half percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date; and (3) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using the applicable interest rate defined in Treasury Regulation §1.417(e)-1(d)(3) and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), divided by 1.05. (e) Benefits payable prior to age sixty-two. -(1) Except as provided in paragraphs (2) and (3) of this subdivision, if the member's retirement benefits become payable before age sixty-two, the 415 dollar limitation prescribed by this section shall be reduced in accordance with regulations issued by the Secretary of the Treasury pursuant to the provisions of Section 415(b) of the Internal Revenue Code, so that the limitation (as so reduced) equals an annual straight life benefit (when the retirement income benefit begins) which is equivalent to an annual benefit in the amount of the applicable dollar limitation of Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted pursuant to Section 415(d) of the Internal Revenue Code) beginning at age sixty-two. (2) The limitation reduction provided in paragraph (1) of this subdivision shall not apply if the member commencing retirement benefits before age sixty-two is a qualified participant. A qualified participant for this purpose is a participant in a defined benefit plan maintained by a state, or any political subdivision of a state, with respect to whom the service taken into account in determining the amount of the benefit under the defined benefit plan includes at least fifteen years of service: (i) As a full-time employee of any police or fire department organized and operated by the state or political subdivision maintaining the defined benefit plan to provide police protection, firefighting services or emergency medical services for any area within the jurisdiction of such state or political subdivision; or (ii) as a member of the Armed Forces of the United States. (3) The limitation reduction provided in paragraph (1) of this subdivision shall not be applicable to preretirement disability benefits or preretirement death benefits. (4) For purposes of adjusting the 415 dollar limitation for benefit commencement before age sixty-two or after age sixty-five (if the plan provides for such adjustment), no adjustment is made to reflect the probability of a member's death: (i) After the annuity starting date and before age sixty-two; or (ii) after age sixty-five and before the annuity starting date. (f) Adjustment when member has less than ten years of participation. -- In the case of a member who has less than ten years of participation in the retirement system (within the meaning of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar limitation (as adjusted pursuant to Section 415(d) of the Internal Revenue Code and subdivision (e) of this section) shall be reduced by multiplying the otherwise applicable limitation by a fraction, the numerator of which is the number of years of participation in the plan (or one, if greater), and the denominator of which is ten. This adjustment shall not be applicable to preretirement disability benefits or preretirement death benefits. (g) The application of the provisions of this section shall not cause the maximum annual benefit provided to a member to be less than the member's accrued benefit as of December 31, 2008 (the end of the limitation year that is immediately prior to the effective date of the final regulations for this retirement system as defined in Treasury Regulation §1.415(a)-1(g)(2)), under provisions of the retirement system that were both adopted and in effect before April 5, 2007, provided that such provisions satisfied the applicable requirements of statutory provisions, regulations and other published guidance relating to Section 415 of the Internal Revenue Code in effect as of the end of December 31, 2008, as described in Treasury Regulation §1.415(a)-1(g)(4). If additional benefits are accrued for a member under this retirement system after January 1, 2009, then the sum of the benefits described under the first sentence of this subsection and benefits accrued for a member after January 1, 2009, must satisfy the requirements of Section 415, taking into account all applicable requirements of the final 415 Treasury Regulations.
§15-2A-6b. Federal law minimum required distributions. The requirements of this section apply to any distribution of a member’s interest and take precedence over any inconsistent provisions of this retirement system. This section applies to plan years beginning after December 31, 1986. Notwithstanding anything in the retirement system to the contrary, the payment of benefits under this article shall be determined and made in accordance with Section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder as applicable to governmental plans. Any term used in this article has the same meaning as when used in a comparable context in Section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder unless a different meaning is clearly required by the context or definition in this article. The following provisions apply to payments of benefits required under this article: (a) The payment of benefits under the retirement system to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under Section 401(a)(9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her beneficiary: Provided, That the requirements of this section may not be construed to grant a right to a form of benefit which is not otherwise available to a particular member under this retirement system. Benefit payments under this section shall not be delayed pending, or contingent upon, receipt of an application for retirement from the member. (b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the retirement system has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his or her death. (c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the retirement system is to be distributed by December 31 of the calendar year containing the fifth anniversary of the member’s death, unless the provisions of subsection (d) of this section apply. (d) If a member dies before distribution to him or her has commenced, and the member’s interest is eligible to be paid in the form of a survivor annuity to a designated beneficiary, distributions are to be made over the life of that beneficiary or over a period certain not greater than the life expectancy of that beneficiary, commencing on or before the following: (1) December 31 of the calendar year immediately following the calendar year in which the member died; or (2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving one hundred percent of the survivor benefit, distributions are to commence on or before the later of: (A) December 31 of the calendar year in which the member would have attained age seventy and one-half; or (B) December 31 of the calendar year immediately following the calendar year in which the member died. (e) If a member dies before distribution to him or her has commenced and the survivor annuity provisions of subsection (d) of this section are not applicable, any designated beneficiary who is eligible to receive a distribution pursuant to the provisions of subsection (c) of this section may elect to have life expectancy treatment apply to the distribution for purposes of determining whether any portion of the distribution is an eligible rollover distribution: Provided, That any such election shall not delay the required distribution of the deceased member’s entire interest in the retirement system beyond December 31 of the calendar year containing the fifth anniversary of the member’s death as required by subsection (c) of this section: Provided, however, That the election is timely made in a form acceptable to the board on or before the following: (1) December 31 of the calendar year immediately following the calendar year in which the member died; or (2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving one hundred percent of the survivor benefit, election of life expectancy treatment must be made on or before the earlier of (A) or (B) below: (A) The later of: (i) December 31 of the calendar year immediately following the calendar year in which the member died; or (ii) December 31 of the calendar year in which the member would have attained age seventy and one-half; or (B) October 31 of the calendar year containing the fifth anniversary of the member’s death.
§15-2A-6c. Direct rollovers. (a) Except where otherwise stated, this section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee's election under this system, a distributee may elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. For purposes of this section, the following definitions apply: (1) "Eligible rollover distribution" means any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include any of the following: (i) Any distribution that is one of a series of substantially equal periodic payments not less frequently than annually made for the life or life expectancy of the distributee or the joint lives or the joint life expectancies of the distributee and the distributee's designated beneficiary or for a specified period of ten years or more; (ii) any distribution to the extent the distribution is required under Section 401(a)(9) of the Internal Revenue Code; (iii) the portion of any distribution that is not includable in gross income determined without regard to the exclusion for net unrealized appreciation with respect to employer securities; and (iv) any hardship distribution described in Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code. For distributions after December 31, 2001, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includable in gross income. However, this portion may be paid only to an individual retirement account or annuity described in Section 408(a) or (b) of the Internal Revenue Code or (for taxable years beginning before January 1, 2007) to a qualified trust which is part of a defined contribution plan described in Section 401(a) or (for taxable years beginning after December 31, 2006) to a qualified trust or to an annuity contract described in Section 403(a) or (b) of the Internal Revenue Code that agrees to separately account for amounts transferred (including interest or earnings thereon), including separately accounting for the portion of the distribution which is includable in gross income and the portion of the distribution which is not so includable, or (for taxable years beginning after December 31, 2007) to a Roth IRA described in Section 408A of the Internal Revenue Code. (2) "Eligible retirement plan" means an individual retirement account described in Section 408(a) of the Internal Revenue Code, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code or a qualified plan described in Section 401(a) of the Internal Revenue Code that accepts the distributee's eligible rollover distribution: Provided, That in the case of an eligible rollover distribution prior to January 1, 2002, to the surviving spouse, an eligible retirement plan is limited to an individual retirement account or individual retirement annuity. For distributions after December 31, 2001, an eligible retirement plan also means an annuity contract described in Section 403(b) of the Internal Revenue Code and an eligible plan under Section 457(b) of the Internal Revenue Code which is maintained by a state, political subdivision of a state or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into the plan from this system. For distributions after December 31, 2007, an eligible retirement plan also means a Roth IRA described in Section 408A of the Internal Revenue Code: Provided, however, That in the case of an eligible rollover distribution after December 31, 2007, to a designated beneficiary (other than a surviving spouse) as such term is defined in Section 402(c)(11) of the Internal Revenue Code, an eligible retirement plan is limited to an individual retirement account or individual retirement annuity which meets the conditions of Section 402(c)(11) of the Internal Revenue Code. (3) "Distributee" means an employee or former employee. In addition, the employee's or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans, are distributees with regard to the interest of the spouse or former spouse. For distributions after December 31, 2007, "distributee" also includes a designated beneficiary (other than a surviving spouse) as such term is defined in Section 402(c)(11) of the Internal Revenue Code. (4) "Direct rollover" means a payment by the system to the eligible retirement plan. (b) Nothing in this section may be construed as permitting rollovers into this system or any other retirement system administered by the board.
§15-2A-6d. Rollovers and transfers to purchase service credit or repay withdrawn contributions. (a) This section applies to rollovers and transfers as specified in this section made on or after January 1, 2002. Notwithstanding any provision of this article to the contrary that would otherwise prohibit or limit rollovers and plan transfers to this system, the retirement system shall accept the following rollovers and plan transfers on behalf of an employee solely for the purpose of purchasing permissive service credit, in whole and in part, as otherwise provided in this article or for the repayment of withdrawn or refunded contributions, in whole and in part, with respect to a previous forfeiture of service credit as otherwise provided in this article: (i) One or more rollovers within the meaning of Section 408(d)(3) of the Internal Revenue Code from an individual retirement account described in Section 408(a) of the Internal Revenue Code or from an individual retirement annuity described in Section 408(b) of the Internal Revenue Code; (ii) one or more rollovers described in Section 402 (c) of the Internal Revenue Code from a retirement plan that is qualified under Section 401(a) of the Internal Revenue Code or from a plan described in Section 403(b) of the Internal Revenue Code; (iii) one or more rollovers described in Section 457(e)(16) of the Internal Revenue Code from a governmental plan described in Section 457 of the Internal Revenue Code; or (iv) direct trustee-to-trustee transfers or rollovers from a plan that is qualified under Section 401(a) of the Internal Revenue Code from a plan described in Section 403(b) of the Internal Revenue Code or from a governmental plan described in Section 457 of the Internal Revenue Code: Provided, That any rollovers or transfers pursuant to this section shall be accepted by the system only if made in cash or other asset permitted by the board and only in accordance with the policies, practices and procedures established by the board from time to time. For purposes of this article, the following definitions and limitations apply: (1) "Permissive service credit" means service credit which is permitted to be purchased under the terms of the retirement system by voluntary contributions in an amount which does not exceed the amount necessary to fund the benefit attributable to the period of service for which the service credit is being purchased, all as defined in Section 415(n)(3)(A) of the Internal Revenue Code: Provided, That no more than five years of "nonqualified service credit", as defined in Section 415(n)(3)(C) of the Internal Revenue Code, may be included in the permissive service credit allowed to be purchased (other than by means of a rollover or plan transfer), and no nonqualified service credit may be included in any such purchase (other than by means of a rollover or plan transfer) before the member has at least five years of participation in the retirement system. (2) "Repayment of withdrawn or refunded contributions" means the payment into the retirement system of the funds required pursuant to this article for the reinstatement of service credit previously forfeited on account of any refund or withdrawal of contributions permitted in this article, as set forth in Section 415(k)(3) of the Internal Revenue Code. (3) Any contribution (other than by means of a rollover or plan transfer) to purchase permissive service credit under any provision of this article must satisfy the special limitation rules described in Section 415(n) of the Internal Revenue Code, and shall be automatically reduced, limited or required to be paid over multiple years if necessary to ensure such compliance. To the extent any such purchased permissive service credit is qualified military service within the meaning of Section 414(u) of the Internal Revenue Code, the limitations of Section 415 of the Internal Revenue Code shall be applied to such purchase as described in Section 414(u)(1)(B) of the Internal Revenue Code. (4) For purposes of Section 415(b) of the Internal Revenue Code, the annual benefit attributable to any rollover contribution accepted pursuant to this section shall be determined in accordance with Treasury Regulation §1.415(b)-1(b)(2)(v), and the excess, if any, of the annuity payments attributable to any rollover contribution provided under the retirement system over the annual benefit so determined shall be taken into account when applying the accrued benefit limitations of Section 415(b) of the Internal Revenue Code and section six-a of this article. (b) Nothing in this section shall be construed as permitting rollovers or transfers into this system or any other system administered by the board other than as specified in this section and no rollover or transfer shall be accepted into the system in an amount greater than the amount required for the purchase of permissive service credit or repayment of withdrawn or refunded contributions. (c) Nothing in this section shall be construed as permitting the purchase of service credit or repayment of withdrawn or refunded contributions except as otherwise permitted in this chapter.
§15-2A-7. Annual annuity adjustment. (a) Every retirant of the fund who is sixty-three years of age or older and who is retired by the board under the provisions of section six of this article; every retirant who is retired under the provisions of section nine or ten of this article; and every surviving spouse receiving a benefit pursuant to section twelve, thirteen or fourteen of this article is eligible to receive an annual retirement annuity adjustment equal to one percent of his or her retirement award or surviving spouse award. The adjustments may not be retroactive. Yearly adjustments shall begin upon July 1, of each year. The annuity adjustments shall be paid to the retirant or surviving spouse from the fund in equal monthly installments while the retirant or surviving spouse are receiving annuity payments. The annuity adjustments shall supplement the retirement awards and benefits provided in this article. (b) Any retirant or surviving spouse who receives a benefit pursuant to the provisions of section nine, ten, twelve, thirteen or fourteen of this article shall begin to receive the annual annuity adjustment one year after the commencement of the benefit on the next July first: Provided, That if the retirant has been retired for less than one year or if the surviving spouse has been in receipt of surviving spouse payments for less than one year when the first annuity adjustment is given on that July first, that first annuity adjustment will be a pro rata share of the full year's annuity adjustment.
§15-2A-8. Refunds to certain members upon discharge of resignation; deferred retirement. (a) Any employee who is discharged by order of the superintendent or otherwise terminates employment with the agency is, at the written request of the member to the board, entitled to receive from the fund a sum equal to the aggregate of the principal amount of moneys deducted from his or her base salary and paid into the fund plus four percent interest compounded thereon calculated annually as provided and required by this article. (b) Any member withdrawing contributions who may thereafter be reemployed by the agency shall not receive any prior service credit in the fund on account of former service. The employee may redeposit in the fund established by this article the amount of the refund, together with interest thereon at the rate of seven and one-half percent per annum from the date of withdrawal to the date of redeposit, in which case he or she shall receive the same credit on account of his or her former service as if no refund had been made. (c) Every employee who completes ten years of service with the agency is eligible, upon separation of employment, to either withdraw his or her contributions in accordance with subsection (a) of this section or to choose not to withdraw his or her accumulated contributions. Upon attainment of age sixty-two, a member who chooses not to withdraw his or her contributions is eligible to receive a retirement annuity. The annuity shall be payable during the lifetime of the retirant and shall be in the amount of his or her accrued retirement benefit as determined under section six of this article, subject to reduction if necessary to comply with the maximum benefit provisions of Section 415 of the Internal Revenue Code and section six-a of this article. The retirant may choose, in lieu of a life annuity, an annuity in a reduced amount payable during the retirant's lifetime, with one half of the reduced monthly amount paid to his or her surviving spouse for the spouse's remaining lifetime after the death of the retirant. Reduction of the monthly benefit amount shall be calculated to be of equal actuarial value to the life annuity the retirant could otherwise have chosen. Any retirant choosing to receive the deferred annuity under this subsection is not eligible to receive the annual annuity adjustment provided in section seven of this article. A retiring member under the provisions of this section may receive retirement annuity payments on the first day of the month following his or her attaining age sixty-two and upon receipt of the application for retirement. The board shall promptly provide the member with an explanation of his or her optional forms of retirement benefits and, upon receipt of properly executed forms from the agency and member, the board shall process the member's request for and commence payments as soon as administratively feasible.
§15-2A-9. Awards and benefits for disability -- Incurred in performance of duty. (a) Any employee of the agency who has not yet entered retirement status on the basis of age and service and who becomes partially disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of employees of the agency or incurred pursuant to or while the employee was engaged in the performance of his or her duties as an employee of the agency shall, if, in the opinion of the board, he or she is, by reason of that cause, unable to perform adequately the duties required of him or her as an employee of the agency, but is able to engage in other gainful employment in a field other than law enforcement, be retired from active service by the board. The retirant thereafter is entitled to receive annually from the fund in equal monthly installments during his or her lifetime, or until the retirant attains the age of fifty-five or until the disability eligibility sooner terminates, one or the other of two amounts, whichever is greater: (1) An amount equal to six tenths of the base salary received in the preceding twelve-month employment period: Provided, That if the member had not been employed with the agency for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or (2) The sum of $6,000. The first day of the month following the date in which the retirant attains age fifty-five, the retirant shall receive the benefit provided in section six of this article as it would apply to his or her final average salary based on earnings from the agency through the day immediately preceding his or her disability. The recalculation of benefit upon a retirant attaining age fifty-five shall be considered to be a retirement under the provisions of section six of this article for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article: Provided, That a retirant who is partially disabled under this article may not, while in receipt of benefits for partial disability, be employed as a lawenforcement officer: Provided, however, That a retirant on a partial disability under this article may serve as an elected sheriff or appointed chief of police in the state without a loss of disability retirement benefits as long as the elected or appointed position is shown, to the satisfaction of the board, to require the performance of administrative duties and functions only, as opposed to the full range of duties of a law-enforcement officer. (b) Any member who has not yet entered retirement status on the basis of age and service and who becomes physically or mentally disabled by injury, illness or disease on a probable permanent basis resulting from any occupational risk or hazard inherent in or peculiar to the services required of employees of the agency or incurred pursuant to or while the employee was or is engaged in the performance of his or her duties as an employee of the agency to the extent that the employee is incapacitated ever to engage in any gainful employment, the employee is entitled to receive annually, and there shall be paid from the fund in equal monthly installments during his or her lifetime or until the disability sooner terminates, an amount equal to the base salary received by the employee in the preceding full twelve-month employment period. Until a member has worked twelve months, the amount of monthly base salary shall be annualized for the purpose of determining the benefit. (c) Disability benefit payments made pursuant to subsection (a) or (b) of this section will begin the first day of the month following board approval and termination of employment or as ordered by a court of competent jurisdiction. (d) The superintendent of the agency may expend moneys from funds appropriated for the agency in payment of medical, surgical, laboratory, x-ray, hospital, ambulance and dental expenses and fees and reasonable costs and expenses incurred in the purchase of artificial limbs and other approved appliances which may be reasonably necessary for any retirant who is temporarily, permanently or totally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the service required of employees of the agency or incurred pursuant to or while the employee was or shall be engaged in the performance of duties as an employee of the agency. Whenever the superintendent determines that any disabled retirant is ineligible to receive any of the benefits in this section at public expense, the superintendent shall, at the request of the disabled retirant, refer the matter to the board for hearing and final decision. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule approved by the West Virginia Insurance Commission. Upon termination of employment and receipt of properly executed forms from the agency and the member, the board shall process the member's disability retirement benefit and commence annuity payments as soon as administratively feasible.
§15-2A-10. Same -- Due to other causes. (a) If any employee while in active service of the agency becomes partially or totally disabled on a probable permanent basis to the extent that the employee cannot adequately perform the duties required of an employee of the agency from any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, the employee shall be retired by the board. There shall be paid annually to the retirant from the fund in equal monthly installments, commencing on the date the retirant is retired and continuing during the lifetime of the retirant or until the retirant attains the age of fifty-five; while in status of retirement an amount equal to one-half the base salary received by the retirant in the preceding full twelve-month period: Provided, That if the retirant had not been employed with the agency for twelve full months prior to the disability, the amount of monthly base salary shall be annualized for the purpose of determining the benefit. (b) The first day of the month following the date in which the retirant attains age fifty-five, the retirant shall receive the benefit provided in section six of this article as it would apply to his or her final average salary based on earnings from the agency through the day immediately preceding his or her disability. The recalculation of benefit upon a retirant attaining age fifty-five shall be considered to be a retirement under the provisions of section six of this article for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article. (c) Disability benefit payments made pursuant to this section will begin the first day of the month following board approval and termination of employment or as ordered by a court of competent jurisdiction: Provided, That in no circumstance may the disability payments begin prior to termination of employment in order to avoid an in-service distribution.
§15-2A-11. Same -- Physical examinations; termination. (a) The board may require any disabled retirant to submit to a physical or mental examination or both a physical and mental examination by a physician or physicians selected or approved by the board and the physician or physicians shall submit a report of the findings of the physician or physicians in writing to the board for its consideration. All medical costs associated with the examination shall be paid by the fund. If from the report, or from the report and hearing on the report, the board is of the opinion and finds that the disabled retirant has recovered from the disability to the extent that he or she is able to perform adequately the duties of a law-enforcement officer, the board shall within five working days provide written notice of the finding to the Superintendent of State Police, who shall reinstate the retirant to active duty as a member of the department at his or her rank or classification prior to the disability retirement within forty-five days of the finding, unless the retirant declines to be reinstated, is found by a background check to be ineligible for reinstatement, or is found by the Superintendent to be unacceptable due to the retirant's performance history and evaluations during prior work with the department. The Superintendent shall promptly notify the board when the retirant is reinstated, is found ineligible for reinstatement due to a background check or unacceptable prior performance history or evaluations, or refuses reinstatement. The board shall order disability payments from the fund to be terminated at the earlier of the date of the retirant's reinstatement, regular retirement, failure of a background check, finding of unacceptable prior performance history or evaluation with the department, failure to accept reinstatement or forty-five days from the board's finding. If from the report, or the report and hearing on the report, the board is of the opinion and finds that the disabled retirant has recovered from his or her previously determined probable permanent disability to the extent that he or she is able to engage in any gainful employment, but unable to adequately perform the duties of a law-enforcement officer, the board shall order, in the case of a disabled retirant receiving benefits under the provisions of section nine of this article, that the disabled retirant be paid annually from the fund an amount equal to six tenths of the base salary paid to the retirant in the last full twelve-month employment period. The board shall order, in the case of a disabled retirant receiving benefits under the provisions of section ten of this article, that the disabled retirant be paid from the fund an amount equal to one fourth of the base salary paid to the retirant in the last full twelve-month employment period: Provided, That if the retirant had not been employed with the agency for twelve full months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit. (b) A disability retirant who is returned to active duty as a member of the West Virginia State Police shall again become a member of the retirement system in which he or she was originally enrolled and the retirant's credited service in force at the time of retirement shall be restored.
§15-2A-11a. Physical examinations of prospective members; application for disability benefit; determinations. (a) Not later than thirty days after an employee becomes a member of the fund, the employer shall forward to the board a copy of the physician's report of a physical examination which incorporates the standards or procedures described in section seven, article two, chapter fifteen of this code. A copy of the physicians's report shall be placed in the employee's retirement system file maintained by the board. (b) Application for a disability benefit may be made by an employee or, if the employee is under an incapacity, by a person acting with legal authority on the employee's behalf. After receiving an application for a disability benefit, the board shall notify the superintendent of the agency that an application has been filed: Provided, That when, in the judgment of the superintendent, an employee is no longer physically or mentally fit for continued duty as an employee of the agency and the employee has failed or refused to make application for disability benefits under this article, the superintendent may petition the board to retire the employee on the basis of disability pursuant to legislative rules proposed in accordance with article three, chapter twenty-nine-a of this code. Within thirty days of the superintendent's receipt of the notice from the board or the filing of the superintendent's petition with the board, the superintendent shall forward to the board a statement certifying the duties of the employee's job description, information relating to the superintendent's position on the work relatedness of the employee's alleged disability, complete copies of the employee's medical file and any other information requested by the board in its processing of the application. (c) The board shall propose legislative rules in accordance with article three, chapter twenty-nine-a of this code relating to the processing of applications and petitions for disability retirement under this article. (d) The board shall notify an employee and the superintendent of its final action on the disability application or petition within ten days of the board's final action. The notice shall be sent by certified mail, return receipt requested. If either the employee or the superintendent is aggrieved by the decision of the board and intends to pursue judicial review of the board's decision as provided in section four, article five, chapter twenty-nine-a of this code, the party aggrieved shall notify the board within twenty days of the employee's or superintendent's receipt of the board's notice that they intend to pursue judicial review of the board's decision. (e) The board may require a disabled retirant to file an annual statement of earnings and any other information required in rules which may be adopted by the board. The board may waive the requirement that a disabled retirant file the annual statement of earnings if the board's physician certifies that the recipient's disability is ongoing. The board shall annually examine the information submitted by the disabled retirant. If a disabled retirant refuses to file the statement or information, the disability benefit shall be suspended until the statement and information are filed. (f) If after review of a disability retirant's annual statement of earnings, tax records or other financial information, as required or otherwise obtained by the board, the board determines that earnings of the recipient of total disability benefits in the preceding year are sufficient to show that the recipient engaged in substantial gainful activity, the disability retirant's disability annuity shall be terminated by the board, upon recommendation of the board's disability review committee, on the first day of the month following the board's action. (g) If the board obtains information that a partially disabled disability retirant is employed as a law-enforcement officer, the disability retirant's disability annuity shall be terminated by the board, upon recommendation of the board's disability review committee, the first day of the month following the board's action. (h) Any person who wishes to reapply for disability retirement and whose disability retirement has been terminated by the board pursuant to this section may do so within ninety days of the effective date of termination: Provided, That any person reapplying for disability benefits shall undergo an examination at the applicant's expense by an appropriate medical professional selected by the board as part of the reapplication process. (I) Notwithstanding other provisions in this section, any person whose disability retirement has been terminated by the board pursuant to this section may apply for regular retirement benefits upon meeting eligibility requirements of age and years of service.
§15-2A-11b. Annual report on each employer's disability retirement experience. Not later than January 1, 2006, and each January 1 thereafter, the board shall prepare a report for the preceding fiscal year of the disability retirement experience of the West Virginia State Police Retirement Fund. The report shall specify the total number of disability applications submitted, the status of each application as of the last day of the fiscal year, total applications granted or denied and the percentage of disability benefit recipients to the total number agency employees who are members of the fund. The report shall be submitted to the Governor and the chairpersons of the standing committees of the Senate and House of Delegates with primary responsibility for retirement legislation.
§15-2A-12. Awards and benefits to dependents of employees or retirants - When employee dies in performance of duty, etc.; dependent child scholarship and amount. (a) The surviving spouse, the dependent child or children or dependent parent or parents of any employee who has lost or shall lose his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of employees while the employee was engaged in the performance of his or her duties as an employee of the agency, or the survivor of a retirant who dies from any cause after having been retired pursuant to the provisions of section nine of this article, is entitled to receive and shall be paid from the fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime, one or the other of two amounts, which shall become payable the first day of the month following the employee's or retirant's death and which shall be the greater of: (1) An amount equal to nine-tenths of the base salary received in the preceding full twelve-month employment period by the deceased employee: Provided, That if the employee had not been employed with the agency for twelve full months prior to his or her death, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or (2) The sum of $10,000. (b) In addition, the surviving spouse is entitled to receive and shall be paid $150 monthly for each dependent child. If the surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each dependent child or children from the fund a sum equal to one third of the surviving spouse's entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is one dependent parent surviving, that parent is entitled to receive during his or her lifetime one half the amount which both parents, if living, would have been entitled to receive: Provided, however, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, the accumulated contributions shall be paid to a named beneficiary or beneficiaries: Provided further, That if there is no surviving spouse, dependent child, dependent parent of the deceased member or any named beneficiary or beneficiaries, then the accumulated contributions shall be paid to the estate of the deceased member. (c) Any person qualifying as a surviving dependent child under this section, in addition to any other benefits due under this or other sections of this article, is entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding $7,500 per year, shall be paid from the fund to any higher education institution in this state, career-technical education provider in this state or other entity in this state approved by the board to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions as long as the recipient makes application to the board on an approved form and under rules provided by the board and maintains scholastic eligibility as defined by the institution or the board. The board may by appropriate rules define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section. Scholarship benefits awarded pursuant to this subsection are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order. (d) A surviving spouse or dependent of an employee meeting the requirements of this section is entitled to receive beneficiary payments on the first day of the month following the date the deceased member is removed from payroll by the agency. A surviving spouse or dependent of a member who is not currently an employee meeting the requirements of this section is entitled to receive beneficiary payments on the first day of the month following the date of the deceased member's death. A surviving spouse or dependent of a retirant meeting the requirements of this section is entitled to receive beneficiary payments on the first day of the month following the date of the deceased retirant's death. Upon receipt of properly executed forms from the agency and surviving spouse or dependent, the board shall process the surviving spouse or dependent benefit as soon as administratively feasible. (e) It is the intent of the Legislature that the levels of benefits provided by operation of this section from the effective date of the enactment of this section during the regular session of the Legislature, 2005, be the same levels of benefits as provided by this section as amended and reenacted during the fourth extraordinary session of the Legislature, 2005. Accordingly, the effective date of the operation of this section as amended and reenacted during the fourth extraordinary session of the Legislature, 2005, is expressly made retrospective to April 9, 2005.
§15-2A-13. Same -- When member dies from nonservice-connected causes before serving twenty years. (a) In any case where an employee while in active service of the agency, before having completed twenty years of service as an employee of the agency, dies from any cause other than those specified in this article and not due to vicious habits, intemperance or willful misconduct on his or her part, there shall be paid annually in equal monthly installments from the fund to the surviving spouse of the member during his or her lifetime, or until the surviving spouse remarries, a sum equal to one half of the base salary received in the preceding full twelve-month employment period by the deceased member: Provided, That if the member had not been employed with the agency for twelve full months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit. If there is no surviving spouse or the surviving spouse dies or remarries, there shall be paid monthly to each dependent child or children from the fund a sum equal to one fourth of the surviving spouse's entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount that a surviving spouse would have been entitled to receive: Provided, however, That when there is one dependent parent surviving, then that parent is entitled to receive during his or her lifetime one half the amount which both parents, if living, would have been entitled to receive: Provided further, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, the accumulated contributions shall be paid to a named beneficiary or beneficiaries: And provided further, That if there is no surviving spouse, dependent child, dependent parent of the deceased member or any named beneficiary or beneficiaries, then the accumulated contributions shall be paid to the estate of the deceased member. (b) A surviving spouse or dependent of an employee meeting the requirements of this section is entitled to receive beneficiary payments on the first day of the month following the date the deceased member is removed from payroll by the agency. A surviving spouse or dependent of a member who is not currently an employee meeting the requirements of this section is entitled to receive beneficiary payments on the first day of the month following the date of the deceased member's death. A surviving spouse or dependent of a retirant meeting the requirements of this section is entitled to receive beneficiary payments on the first day of the month following the date of the deceased retirant's death. Upon receipt of properly executed forms from the agency and surviving spouse or dependent, the board shall process the surviving spouse or dependent benefit as soon as administratively feasible.
§15-2A-14. Awards and benefits to dependents of member -- When member dies after retirement or after serving twenty years. (a) When any employee of the agency has completed twenty years of service or longer as an employee of the agency and dies from any cause or causes other than those specified in this article before having been retired by the board and when a retirant has died or dies after having been retired by the board under the provisions of this article, there shall be paid annually in equal monthly installments from the fund to the surviving spouse of the member or retirant, during the lifetime or until remarriage of the surviving spouse, an amount equal to two thirds of the retirement benefit which the deceased retirant was receiving while in status of retirement or would have been entitled to receive to the same effect as if the member had been retired under the provisions of this article immediately prior to the time of his or her death. In no event shall the annual benefit payable be less than $5,000. In addition, the surviving spouse is entitled to receive and there shall be paid to the surviving spouse from the fund the sum of $100 monthly for each dependent child. If the surviving spouse dies or remarries, or if there is no surviving spouse, there shall be paid monthly from the fund to each dependent child or children of the deceased member a sum equal to one fourth of the surviving spouse's entitlement. If there is no surviving spouse or no surviving spouse eligible to receive benefits and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse without children would have been entitled to receive: Provided, That when there is one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive: Provided, however, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, the accumulated contributions shall be paid to a named beneficiary or beneficiaries: Provided further, That if there is no surviving spouse, dependent child, dependent parent of the deceased member or any named beneficiary or beneficiaries, then the accumulated contributions shall be paid to the estate of the deceased member. (b) The retirant may choose a higher percentage of surviving spouse benefits by taking an actuarially determined reduced initial benefit so that the chosen spouse benefit and initial benefit would be actuarially equivalent to the normal spouse benefit and initial benefit. The board shall design these benefit options and provide them as choices for the retirant to select. For the purposes of this subsection, "initial benefit" means the benefit received by the retirant upon retirement.
§15-2A-15. Exemption from taxation, garnishment and other process; exception for certain qualified domestic relations orders. The moneys in the fund and the right of a member or retirant to a retirement allowance, to the return of contributions or to any benefit under the provisions of this article are hereby exempt from any state or municipal tax; are not subject to execution, garnishment, attachment or any other process whatsoever except that the benefits or contributions under this system are subject to "qualified domestic relations orders" as that term is defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans; and are unassignable except as is provided in this article.
§15-2A-16. Fraud; penalties. Any person who knowingly makes any false statement or who falsifies or permits to be falsified any record or records of the retirement system in any attempt to defraud that system is guilty of a misdemeanor, and, upon conviction, shall be punished by a fine not to exceed $1,000, or confinement in the county jail not to exceed one year or both.
§15-2A-17. Awards and benefits to dependents of member -- Termination. When any surviving spouse of a member or retirant dies or remarries while receiving or being entitled to receive any benefits under any section except section twelve of this article, the surviving spouse may not from the date of his or her remarriage, nor may the estate from the date of death of the deceased member's or retirant's surviving spouse, be entitled to receive any benefits under this article whatsoever: Provided, That in any case where under the terms of this article benefits are provided for a child or children surviving the death or remarriage of the surviving spouse, payment of benefits to that child or children shall be calculated for payment from the date the surviving spouse dies or remarries.
§15-2A-18. Authority to continue payments to certain dependents. The board may continue payments of a surviving spouse's entitlement in full to any dependent child who continues to be dependent by reason of mental or physical incapacity as determined by the board, notwithstanding the age of the dependent child or other provisions of this article.
§15-2A-19. Credit toward retirement for member's prior military service; credit toward retirement when member has joined Armed Forces in time of armed conflict; qualified military service. (a) Any member who has previously served on active military duty is entitled to receive additional credited service for the purpose of determining the amount of retirement award under the provisions of this article for a period equal to the active military duty not to exceed five years, subject to the following: (1) That he or she has been honorably discharged from the Armed Forces; (2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty; (3) That he or she is receiving no benefits from any other retirement system for his or her active military duty; and (4) That, except with respect to disability retirement pay awarded under this article, he or she has actually served with the agency for twenty years exclusive of his or her active military duty. (b) In addition, any person who, while an employee of the agency, was commissioned, enlisted or inducted into the Armed Forces of the United States or, being a member of the reserve officers' corps, was called to active duty in the Armed Forces between September 1, 1940, and the close of hostilities in World War II, or between June 27, 1950, and the close of the armed conflict in Korea on July 27, 1953, between August 1, 1964, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by Congress or by executive or other order of the President, is entitled to and shall receive credit on the minimum period of service required by law for retirement pay from the service of the agency, or its predecessor agency, for a period equal to the full time that he or she has or, pursuant to that commission, enlistment, induction or call, shall have served with the Armed Forces subject to the following: (1) That he or she has been honorably discharged from the Armed Forces; (2) That, within ninety days after honorable discharge from the Armed Forces, he or she presented himself or herself to the superintendent and offered to resume service as an active member of the agency; and (3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the Armed Forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called. (c) The total amount of military service credit allowable under this section may not exceed five years for any member of the agency. (d) Notwithstanding the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414 (u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414 (u) of the Internal Revenue Code. The board shall determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414 (u) of the Internal Revenue Code.
§15-2A-20. Benefits not forfeited if system terminates. If the retirement system is terminated or contributions are completely discontinued, the rights of all members to benefits accrued or contributions made to the date of such termination or discontinuance, to the extent then funded, are not forfeited.
§15-2A-21. Retirement credited service through member's use, as option, of accrued annual or sick leave days. Any member accruing annual leave or sick leave days may, after April 9, 2005, elect to use the days at the time of retirement to acquire additional credited service in this retirement system. The days shall be applied on the basis of two workdays' credit granted for each one day of accrued annual or sick leave days, with each month of retirement service credit to equal twenty workdays and with any remainder of ten workdays or more to constitute a full month of additional credit and any remainder of less than ten workdays to be dropped and not used, notwithstanding any provisions of the code to the contrary: Provided, That for a person who first becomes a member of the retirement system on or after July 1, 2015, accrued annual and sick leave days may not be applied to acquire additional credited service. The credited service shall be allowed and not considered to controvert the requirement of no more than twelve months' credited service in any year's period.
§15-2A-22. Limitations on benefit increases. (a) The state will not increase any existing benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature. (b) If any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in the system as calculated in the annual actuarial valuation for the plan during any fiscal year, the additional unfunded actuarial accrued liability of that pension system will be fully amortized over no more than the six consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the six year amortization in the determination of the adequacy of the employer contribution percentage for the system. (c) The state will not increase any existing benefits or create any new benefits for active members due to retirement, death or disability of the system unless the actuarial accrued liability of the plan shall be at least eighty-five percent funded as of the last day of the prior fiscal year as determined in the actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature. Any additional unfunded actuarial accrued liability due to any improvement in active members benefits shall be fully amortized over not more than ten years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the ten year amortization in the determination of the adequacy of the employer contribution percentage for the system.
§15-2A-23. Correction of errors; underpayments; overpayments. (a) General rule: Upon learning of any errors, the board shall correct errors in the retirement system in a timely manner whether the individual, entity or board was at fault for the error with the intent of placing the affected individual, entity and retirement board in the position each would have been in had the error not occurred. (b) Underpayments to the system: Any error resulting in an underpayment to the system, may be corrected by the member or retirant remitting the required employee contribution or underpayment and the employer remitting the required employer contribution or underpayment. Interest shall accumulate in accordance with the legislative rule 162 CSR 7 concerning retirement board refund, reinstatement, retroactive service, loan and correction of error interest factors and any accumulating interest owed on the employee and employer contributions or underpayments resulting from an employer error shall be the responsibility of the employer. The employer may remit total payment and the employee reimburse the employer through payroll deduction over a period equivalent to the time period during which the employer error occurred. If the correction of an error involving an underpayment to the system will result in the system correcting an erroneous underpayment from the system, the correction of the underpayment from the system shall be made only after the board receives full payment of all required employee and employer contributions or underpayments, including interest. (c) Overpayments to the system by an employer: When mistaken or excess employer contributions or other overpayments have been made to the system by an employer, the board shall credit the employer with an amount equal to the overpayment, to be offset against the employer's future liability for employer contributions to the system. If the employer has no future liability for employer contributions to the retirement system, the board shall refund the erroneous contributions directly to the employer. Earnings or interest shall not be returned, offset or credited to the employer under any of the means used by the board for returning employer overpayments to the retirement system. (d) Overpayments to the system by an employee: When mistaken or excess employee contributions or overpayments have been made to the system, the board shall have sole authority for determining the means of return, offset or credit to or for the benefit of the individual making the mistaken or excess employee contribution of the amounts, and may use any means authorized or permitted under the provisions of section 401(a), et seq. of the Internal Revenue Code and guidance issued thereunder applicable to governmental plans. Alternatively, in its full and complete discretion, the board may require the employer employing the individual to pay the individual the amounts as wages, with the board crediting the employer with a corresponding amount to offset against its future contributions to the plan. If the employer has no future liability for employer contributions to the retirement system, the board shall refund said amount directly to the employer: Provided, That the wages paid to the individual shall not be considered compensation for any purposes of this article. Earnings or interest shall not be returned, offset, or credited under any of the means used by the board for returning employee overpayments. (e) Overpayments from the system: If any error results in any member, retirant, beneficiary, entity or other individual receiving from the system more than he would have been entitled to receive had the error not occurred the board, upon learning of the error, shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the member, retirant, beneficiary, entity or other person who received the overpayment from the system shall repay the amount of any overpayment to the system in any manner permitted by the board. Interest shall not accumulate on any corrective payment made to the system pursuant to this subsection. (f) Underpayments from the system: If any error results in any member, retirant, beneficiary, entity or other individual receiving from the system less than he would have been entitled to receive had the error not occurred, the board shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the board shall pay the amount of such underpayment to the member, retirant, beneficiary or other individual in a lump sum. Interest shall not be paid on any corrective payment made by the system pursuant to this subsection. (g) Eligibility errors: If the board finds that an individual, employer, or both individual and employer currently or formerly participating in the system is not eligible to participate, the board shall notify the individual and his or her employer of the determination, and terminate participation in the system. Any erroneous payments to the system shall be returned to the employer and individual in accordance with the methods described in subsections (c) and (d) of this section and any erroneous payments from the system to such individual shall be returned to the system in accordance with the methods described in subsection (e) of this section. Any erroneous service credited to the individual shall be removed. If the board determines that an individual or employer, or both, has not been participating in the system, but was eligible to and required to be participating in the system, the board shall as soon as practicable notify the individual and his or her employer of the determination, and the individual and his or her employer shall prospectively commence participation in the system as soon as practicable. Service credit for service prior to the date on which the individual prospectively commences participation in the system shall be granted only if the board receives the required employer and employee contributions for such service, in accordance with subsection (b) in this section, including interest.
ARTICLE 2B. DNA DATA. §15-2B-1. Short title. This article may be cited as the "DNA Database and Databank Act of 1995".
§15-2B-2. Policy. It is the policy of this state to assist federal, state and local criminal justice and law-enforcement agencies in the identification, detection and exclusion of individuals who are subjects of the investigation or prosecution of violent crimes, sex-related crimes and other crimes against the person. In furtherance of such assistance, the Legislature finds: That the analysis of DNA contained in biological evidence that may be recovered from a crime scene facilitates such identification, detection and exclusion; That the comparison of DNA data recovered from a crime scene with existing DNA records maintained in a central DNA database further facilitates such identification, detection and exclusion; and That requiring individuals convicted of certain crimes to provide a blood sample for DNA analysis with the resulting DNA records maintained in a central DNA database will likewise further facilitate the aforementioned identification, detection and exclusion and may serve to discourage recidivism. Therefore, the Legislature finds that assisting federal, state and local criminal justice and law-enforcement agencies through the use and development of DNA analysis is of the utmost importance and urgency in this state and that a DNA identification system shall be established as described in this article.
§15-2B-3. Definitions. As used in this article: (1) "CODIS" means the Federal Bureau of Investigation's Combined DNA Index System that allows the storage and exchange of DNA records submitted by federal, state and local forensic DNA laboratories. The term "CODIS" includes the National DNA Index System administered and operated by the Federal Bureau of Investigation. (2) "Conviction" includes convictions by a jury or court, guilty plea, or plea of nolo contendere. (3) "Criminal justice agency" means an agency or institution of a federal, state or local government, other than the office of public defender, which performs as part of its principal function, relating to the apprehension, investigation, prosecution, adjudication, incarceration, supervision or rehabilitation of criminal offenders. (4) "Division" means the West Virginia State Police." (5) "DNA" means deoxyribonucleic acid. DNA is located in the nucleus of cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification. (6) "DNA record" means DNA identification information stored in any state DNA database pursuant to this article. The DNA record is the result obtained from DNA typing tests. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification tests on an individual's DNA sample are also included as a "DNA record". (7) "DNA sample" means a tissue, fluid or other bodily sample, suitable for testing, provided pursuant to this article or submitted to the division laboratory for analysis pursuant to a criminal investigation. (8) "FBI" means the Federal Bureau of Investigation. (9) "Interim plan" means the plan used currently by the Federal Bureau of Investigation for Partial Match Protocol and to be adopted under the management rules of this article. (10) "Management rules" means the rules promulgated by the West Virginia State Police that define all policy and procedures in the administration of this article. (11) "Partial match" means that two DNA profiles, while not an exact match, share a sufficient number of characteristics to indicate the possibility of a biological relationship. (l2) "Qualifying offense" means any felony offense as described in section six of this article or any offense requiring a person to register as a sex offender under this code or the federal law. For the purpose of this article, a person found not guilty of a qualifying offense by reason of insanity or mental disease or defect shall be required to provide a DNA sample in accordance with this article. (13) "Registering Agency" means the West Virginia State Police. (14) "State DNA database" means all DNA identification records included in the system administered by the West Virginia State Police. (15) "State DNA databank" means the repository of DNA samples collected under the provisions of this article.
§15-2B-4. Division of public safety to establish and administer DNA identification system; inspection of laboratories. (a) The division shall establish a DNA identification system consisting of a state DNA database and a state DNA databank compatible with the procedures specified by the FBI. (b) The division shall be the administrator of the state DNA databank and database and the DNA identification system. (c) The division shall supervise all DNA forensic laboratories in this state to ensure that such laboratories are acting in compliance with applicable provisions of state and federal law. The division may inspect or monitor such facilities and may prohibit any such laboratory from participating in the exchange of information when the division finds that the facility has not acted in conformity with state and federal laws. The superintendent of the division shall further promulgate a legislative rule pursuant to chapter twenty-nine-a of this code regarding the monitoring, inspection and prohibition on the exchange of information. (d) The superintendent of the division shall further establish standards for testing and quality assurance of DNA testing and the exchange of information through the promulgation of a legislative rule pursuant to chapter twenty-nine-a of this code. (e) The superintendent of the division of public safety shall promulgate additional legislative rules pursuant to chapter twenty-nine-a of this code necessary to establish and administer the DNA database and databank consistent with the requirements of state and federal law and consistent with the systems employed by the FBI.
§15-2B-5. Authority of division to enter into cooperative agreements. The division may enter into cooperative agreements with public or private agencies or entities to provide a service or facility associated with the administration of the DNA database and databank. In the event the division enters into any agreements for the purposes of (1) testing of offender samples for CODIS; (2) criminal paternity cases; or (3) identification of human remains for the Office of Chief Medical Examiner using nuclear DNA technology, the division is authorized to only enter into such agreements with the Marshall University Forensic Science Center.
§15-2B-6. DNA sample required for DNA analysis upon conviction; DNA sample required for certain prisoners. (a) Any person convicted of an offense described in section one, four, seven, nine, nine-a (when that offense constitutes a felony), ten, ten-a, ten-b, twelve, fourteen or fourteen-a, article two, chapter sixty-one of this code or section twelve, article eight of said chapter (when that offense constitutes a felony), shall provide a DNA sample to be used for DNA analysis as described in this article. Further, any person convicted of any offense described in article eight-b or eight-d of said chapter shall provide a DNA sample to be used for DNA analysis as described in this article. (b) Any person presently incarcerated in a state correctional facility or in jail in this state after conviction of any offense listed in subsection (a) of this section shall provide a DNA sample to be used for purposes of DNA analysis as described in this article. (c) Any person convicted of a violation of section five or thirteen, article two, chapter sixty-one of this code, section one, two, three, four, five, seven, eleven, twelve(when that offense constitutes a felony) or subsection (a), section thirteen, article three of said chapter, section three, four, five or ten, article three-e of said chapter or section three, article four of said chapter, shall provide a DNA sample to be used for DNA analysis as described in this article. (d) Any person convicted of an offense which constitutes a felony violation of the provisions of article four, chapter sixty-a of this code; or of an attempt to commit a violation of section one or section fourteen-a, article two, chapter sixty-one of this code; or an attempt to commit a violation of article eight-b of said chapter shall provide a DNA sample to be used for DNA analysis as described in this article. (e) The method of taking the DNA sample is subject to the testing methods used by the West Virginia State Police Crime Lab. The DNA sample will be collected using a postage paid DNA collection kit provided by the West Virginia State Police. (f) When a person required to provide a DNA sample pursuant to this section refuses to comply, the state shall apply to a circuit court for an order requiring the person to provide a DNA sample. Upon a finding of failure to comply, the circuit court shall order the person to submit to DNA testing in conformity with the provisions of this article. (g) The West Virginia State Police may, where not otherwise mandated, require any person convicted of a felony offense under the provisions of this code, to provide a DNA sample to be used for the sole purpose of criminal identification of the convicted person who provided the sample: Provided, That the person is under the supervision of the criminal justice system at the time the request for the sample is made. Supervision includes prison, the regional jail system, parole, probation, home confinement, community corrections program, and work release. (h) On the effective date of the amendments to this section enacted during the regular session of the Legislature in 2011, any person required to register as a sex offender in this state and who has not already provided a DNA sample in accordance with this article, shall provide a DNA sample as determined by the registration agency in consultation with the West Virginia State Police Laboratory. The registering agency is responsible for the collection and submission of the sample under this article. (i) When this state accepts a person from another state under any interstate compact, or under any other reciprocal agreement with any county, state or federal agency or any other provision of law whether or not the person is confined or released, the transferred person must submit a DNA sample, if the person was convicted of an offense in any other jurisdiction which would be considered a qualifying offense as defined in section six if committed in this state, or if the person was convicted of an equivalent offense in any other jurisdiction. The person shall provide the DNA sample in accordance with the rules of the custodial institution or supervising agency. If the transferred person has already submitted a DNA sample that can be found in the national database, the accepting agency is not required to draw a second DNA sample. (j) If a person convicted of a qualifying offense is released without giving a DNA sample due to an oversight or error or because of the person's transfer from another jurisdiction, the person shall give a DNA sample for inclusion in the state DNA database after being notified of this obligation. Any such person may request a copy of the court order requiring the sample prior to the collection of the DNA sample.
§15-2B-7. Tests to be performed on DNA sample. The tests to be performed on each DNA sample shall analyze and type the genetic markers contained in or derived from the DNA sample in accordance with rules promulgated under this article. Any rule regarding the typing and analysis of the DNA sample shall be consistent with any specifications required by federal law.
§15-2B-8. Maintenance of DNA samples and records. DNA records and samples shall be stored and maintained by the division in the state DNA database and databank, respectively. DNA samples, without personal identifying information, may also be stored in any DNA typing, testing and research laboratory selected by the division pursuant to section five of this article.
§15-2B-9. Procedures for withdrawal of blood sample for DNA analysis and for conducting analysis. (a) Upon incarceration, the Division of Corrections, regional jails and felon facilities shall ensure that the DNA sample is collected from all persons described in section six of this article. When any person convicted of an offense described in section six is not incarcerated, the sheriff in the county where the person is convicted shall ensure that the DNA sample is collected from the person: Provided, That a DNA sample may be collected at a prison, regional facility or local hospital unit when so ordered by the sentencing court or other location determined by the sheriff. (b) The Superintendent of the West Virginia State Police shall promulgate a legislative rule pursuant to chapter twenty-nine-a of this code establishing which persons may withdraw blood and further establishing procedures to withdraw blood. At a minimum, these procedures shall require that when blood is withdrawn for the purpose of DNA identification testing, a previously unused and sterile needle and sterile vessel shall be used, the withdrawal shall otherwise be in strict accord with accepted medical practices and in accordance with any recognized medical procedures employing universal precautions as outlined by the Centers for Disease Control and Prevention. No civil liability attaches to any person when the blood was drawn according to recognized medical procedures employing the universal precautions. No person is relieved of liability for negligence in the drawing of blood for purposes of DNA testing. (c) The Superintendent of the West Virginia State Police shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code governing the procedures to be used in the collection of DNA samples, submission, identification, analysis and storage of DNA samples and typing results of DNA samples submitted under this article which shall be compatible with recognized federal standards. (d) The agency having control, custody or supervision of persons convicted for qualifying offenses may, in consultation with and approval of the West Virginia State Police Laboratory, promulgate rules or policies specifying the time and manner of collection of the DNA samples as well as any other matter necessary to carry out its responsibilities under this article. (e) The agency or institution having custody, control or providing supervision of persons convicted for qualifying offenses, as appropriate, is authorized to contract with third parties to provide for the collection of the DNA samples described in section six of this article. (f) A person, convicted of a qualifying offense and not incarcerated in a facility described in subsection (a) of this section, who has been put on notice of his or her obligation to provide a DNA sample and has not submitted a court ordered DNA sample at the request of a law-enforcement agency, shall be responsible for notifying the agency designated in the court order and complying with that agency's directives for submitting a DNA sample. The person shall have thirty days from the receipt of the court order to comply unless there is a documented exception from the agency responsible for the DNA sample collection. A person refusing to comply with a court order directing that person submit a DNA sample may be considered in contempt. (g) Any court sentencing a person convicted of a qualifying offense to probation, on or after the effective date of the amendments to this section enacted during the regular session of the Legislature in 2011, shall order, as a condition of such probation, that the convicted person report to the local sheriff's department to provide a DNA sample within thirty days.
§15-2B-10. DNA database exchange. (a) The West Virginia State Police shall receive DNA samples, store, analyze, classify and file the DNA records consisting of all identification characteristics of DNA profiles from DNA samples submitted pursuant to the procedures for conducting DNA analysis of DNA samples. (b) The West Virginia State Police may furnish DNA records to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive them, of other states within the United States and of the State of West Virginia upon proper request stating that the DNA records requested will be used solely: (1) For law enforcement identification purposes by criminal justice agencies; (2) In judicial proceedings, if otherwise expressly permitted by state or federal laws; (3) If personal identifying information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes; or (4) For the identification of unidentified human remains, missing persons and relatives of missing persons. (c) The Superintendent of the West Virginia State Police shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code governing the methods by which any lawenforcement agency or other authorized entity may obtain information from the state DNA database consistent with this section and federal law. (d) The West Virginia State Police may release DNA samples, without personal identifying information, to any agency or entity with which the West Virginia State Police contracts pursuant to section five of this article. (e) The West Virginia State Police may release DNA samples for criminal defense and appeal purposes, to a defendant who is entitled to access to samples and analysis performed in connection with the case in which the defendant is charged or was convicted. (f) Searches of the state DNA database shall be performed in accordance with state and federal law and procedures.
§15-2B-11. Expungement. (a) Any person whose DNA record or profile has been included in the state database and whose DNA sample is stored in the state databank or the state's designated DNA typing, testing and research laboratory may apply for expungement on the grounds that the felony conviction that resulted in the inclusion of the person's DNA record or profile in the state database or the inclusion of the person's DNA sample in the state databank has been reversed and the case dismissed. The person requesting expungement, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application for expungement shall be served on the prosecuting attorney for the judicial district in which the felony conviction was obtained not less than twenty days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the conviction shall be attached to an order of expungement. (b) Upon receipt of an order of expungement, the division shall purge the DNA record and all other identifiable information from the state database and the DNA sample stored in the state databank covered by the order. If the individual has more than one entry in the state database and databank, then only the entry covered by the expungement order shall be deleted from the state database or databank.
§15-2B-12. Confidentiality; unauthorized uses of DNA databank; penalties. (a) All DNA profiles and samples submitted to the West Virginia State Police pursuant to this article shall be treated as confidential except as provided in this article. (b) Any person who, by virtue of employment or official position has possession of or access to individually identifiable DNA information contained in the state DNA database or databank and who willfully discloses it in any manner to any person or agency not entitled to receive it is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail for a period not to exceed one year, or both fined and confined. (c) Any person who, without authorization, willfully obtains individually identifiable DNA information from the state DNA database or databank is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail for a period not to exceed one year, or both fined and confined. (d) DNA records and DNA samples submitted to the West Virginia State Police Laboratory pursuant to this article are exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code, or any other statutory provision or court opinion requiring the disclosure of public records. (e) In case of a criminal proceeding, a request to access a person's DNA record must be made in accordance with rules for criminal discovery as provided in the West Virginia Code and the Rules of Criminal Procedure. The West Virginia State Police Laboratory is not required to provide, for criminal discovery purposes, more than the DNA profile(s) and identifying information generated as a result of the search that led to the match between the case evidence and the defendant.
§15-2B-13. Neglect of duties; destruction of samples; penalties. (a) Any person who neglects or refuses to do or perform any act on his or her part to be done or performed in connection with the operation of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $50 nor more than $200 or be imprisoned in the county or regional jail for a period of not more than sixty days, or both fined and imprisoned. Further, such neglect constitutes misfeasance in office and may subject that person to removal from office. (b) Any person who willfully removes, destroys or mutilates any of the DNA samples, records or other information acquired or stored pursuant to this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or imprisoned in the county or regional jail not to exceed one year, or both fined and imprisoned.
§15-2B-14. Right to DNA testing. (a) A person convicted of a felony currently serving a term of imprisonment may make a written motion before the trial court that entered the judgment of conviction for performance (DNA) testing. (b) (1) An indigent convicted person may request appointment of counsel to prepare a motion under this section by sending a written request to the court. The request must include the person's statement that he or she was not the perpetrator of the crime and that DNA testing is relevant to his or her assertion of innocence. The request must also include the person's statement as to whether he or she previously had appointed counsel under this section. (2) If any of the information required in subdivision (1) of this section is missing from the request, the court shall return the request to the convicted person and advise him or her that the matter cannot be considered without the missing information. (3) (A) Upon a finding of indigency, the inclusion of information required in subdivision (1) of this section, and that counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing under this section. Counsel represents the indigent person solely for the purpose of obtaining DNA testing under this section. (B) Upon a finding of indigency, and that counsel has been previously appointed pursuant to this subdivision, the court may, in its discretion, appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing under this section. Counsel represents the person solely for the purpose of obtaining DNA testing under this section. (4) Nothing in this section provides for a right to the appointment of counsel in a post-conviction collateral proceeding or sets a precedent for any such right. The representation provided an indigent convicted person under this article is solely for the limited purpose of filing and litigating a motion for DNA testing pursuant to this section. (c) (1) The motion shall be verified by the convicted person under penalty of perjury and must do the following: (A) Explain why the identity of the perpetrator was, or should have been, a significant issue in the case. (B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability the convicted person's verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction. (C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought. (D) Reveal the results of any DNA or other biological testing previously conducted by either the prosecution or defense, if known. (E) State whether any motion for testing under this section has been filed previously and the results of that motion, if known. (2) Notice of the motion shall be served on the prosecuting attorney in the county of conviction and, if known, the governmental agency or laboratory holding the evidence sought to be tested. Responses, if any, shall be filed within sixty days of the date on which the prosecuting attorney is served with the motion, unless a continuance is granted for good cause. (d) If the court finds evidence was subject to prior DNA or other forensic testing, by either the prosecution or defense, it shall order the party at whose request the testing was conducted to provide all parties and the court with access to the laboratory reports, underlying data, and laboratory notes prepared in connection with the DNA or other biological evidence testing. (e) The court, in its discretion, may order a hearing on the motion. The motion shall be heard by the judge who conducted the trial or accepted the convicted person's plea, unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion. (f) The court shall grant the motion for DNA testing if it determines all of the following have been established: (1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion; (2) The evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect; (3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case; (4) The convicted person has made a prima facie showing that the evidence sought for testing is material to the issue of the convicted person's identity as the perpetrator of or accomplice to, the crime, special circumstance, or enhancement allegation resulting in the conviction or sentence; (5) The requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if DNA testing results had been available at the time of conviction. The court in its discretion may consider any evidence regardless of whether it was introduced at trial; (6) The evidence sought for testing meets either of the following conditions: (A) The evidence was not previously tested; (B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results; (7) The testing requested employs a method generally accepted within the relevant scientific community; (8) The evidence or the presently desired method of testing DNA were not available to the defendant at the time of trial or a court has found ineffective assistance of counsel at the trial court level; (9) The motion is not made solely for the purpose of delay. (g) If the court grants the motion for DNA testing, the court order shall identify the specific evidence to be tested and the DNA technology to be used. Testing shall be conducted by a DNA forensic laboratory in this state. (h) The result of any testing ordered under this section shall be fully disclosed to the person filing the motion and the prosecuting attorney. If requested by any party, the court shall order production of the underlying laboratory data and notes. (i) If testing was requested by the state or the individual is an indigent, the cost of DNA testing shall be borne by the state. (j) An order granting or denying a motion for DNA testing under this section is not to be appealable and is subject to review only through a petition for writ of mandamus or prohibition filed with the Supreme Court of Appeals by the person seeking DNA testing or the prosecuting attorney. The petition shall be filed within twenty days of the court's order granting or denying the motion for DNA testing. The court shall expedite its review of a petition for writ of mandamus or prohibition filed under this subsection. (k) DNA testing ordered by the court pursuant to this section shall be done as soon as practicable. However, if the court finds that a miscarriage of justice will otherwise occur and that it is necessary in the interests of justice to give priority to the DNA testing, the court may require the DNA laboratory to give priority to the DNA testing ordered pursuant to this section over the laboratory's other pending casework. (l) DNA profile information from biological samples taken from a convicted person pursuant to a motion for post-conviction DNA testing is exempt from any law requiring disclosure of information to the public. (m) Notwithstanding any other provision of law, the right to file a motion for post-conviction DNA testing provided by this section is absolute and may not be waived. This prohibition applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendre.
§15-2B-15. Collection of fees to cover the cost of DNA profile entry into the DNA database and DNA databank; cost of collecting and analyzing DNA sample. For persons convicted after July 1, 2011, a mandatory fee of $150, which is in addition to any other costs imposed pursuant to statutory authority, shall automatically be assessed on any person convicted of, or adjudicated delinquent for, a qualifying offense, unless the court finds that undue hardship would result. This fee shall be collected by the sentencing court or the agency responsible for the collection of the DNA sample and remitted to the State Treasury on or before the tenth of every month. Notwithstanding any other provision of this code to the contrary, all moneys collected as a result of this fee shall be deposited in a special account within the State Treasury to be known as the "West Virginia State Police DNA Database Account" to be administered by the Superintendent of the West Virginia State Police. Expenditures from the fund are authorized from collections for purposes associated with the processing of DNA samples for the DNA database.
§15-2B-16. Partial matches and the DNA database. The division may use the data in the DNA database for partial match analysis for criminal investigations of murder, kidnapping and first and second degree sexual assault, as defined in this code, where all investigated leads have been exhausted. The division shall follow the standards and procedures defined in the Interim Plan when replying to requests for partial match information from criminal justice agencies from within or outside the state until such time as the division promulgates management rules.
ARTICLE 2C. CENTRAL ABUSE REGISTRY. §15-2C-1. Definitions. The following words when used in this article have meanings ascribed to them in this section, except in those instances where the context clearly indicates a different meaning: (a) "Central abuse registry" or "registry" means the registry created by this article which shall contain the names of individuals who have been convicted of a felony or a misdemeanor offense constituting abuse, neglect or misappropriation of the property of a child or an incapacitated adult or an adult receiving behavioral health services. (b) "Child abuse and neglect" or "child abuse or neglect" means those terms as defined in section three, article one, chapter forty-nine of this code, and shall include any act with respect to a child which is a crime against the person pursuant to article two, chapter sixty-one of this code, any act which is unlawful pursuant to article eight-d of said chapter sixty-one, and any offense with respect to a child which is enumerated in section three of this article. (c) "Abuse or neglect of an incapacitated adult" means "abuse," "neglect" and "incapacitated adult" as those terms are defined in section one, article six, chapter nine, and shall include any act with respect to an incapacitated adult which is a crime against the person pursuant to article two, chapter sixty-one of this code, and any offense with respect to an incapacitated adult which is enumerated in section three of this article. (d) "Adult receiving behavioral health services" means a person over the age of eighteen years who is receiving any behavioral health service from a licensed behavioral health provider or any behavioral health provider whose services are paid for, in whole or in part, by Medicaid or Medicare. (e) "Conviction" of a felony or a misdemeanor means an adjudication of guilt by a court or jury following a hearing on the merits, or entry of a plea of guilty or nolo contendere. (f) "Residential care facility" means any facility where a child or an incapacitated adult or an adult receiving behavioral health services resides which is subject to registration, licensure or certification by the Department of Health and Human Resources, and shall include nursing homes, personal care homes, residential board and care homes, adult family care homes, group homes, legally unlicensed service providers, residential child care facilities, family based foster care homes, specialized family care homes and intermediate care facilities for the mentally retarded. (g) "Misappropriation of property" means any act which is a crime against property under article three, chapter sixty-one of this code with respect to a child in a residential care facility or an incapacitated adult or an adult receiving behavioral health services in a residential care facility or a child or an incapacitated adult or an adult receiving behavioral health services who is a recipient of home care services. (h) "Home care" or "home care services" means services provided to children or incapacitated adults or adults receiving behavioral health services in the home through a hospice provider, a community care provider, a home health agency, through the Medicaid waiver program, or through any person when that service is reimbursable under the state Medicaid program. (i) "Requester" means the West Virginia Department of Education, any residential care facility, any state licensed day care center, any qualified entity as defined in this section or any provider of home care services or an adult receiving behavioral health services providing to the Central Abuse Registry the name of an individual and other information necessary to identify that individual, and either: (1) Certifying that the individual is being considered for employment or service as a volunteer by the requester or for a contractual relationship with the requester wherein the individual will provide services to a child or an incapacitated adult or an adult receiving behavioral health services for compensation; or contractors and vendors who have or may have unsupervised access to the child, disabled or elderly person for whom the qualified entity provides care; or (2) certifying that an allegation of abuse, neglect or misappropriation of property has been made against the individual. (j) "Qualified entity" means any business, agency or organization that provides care, treatment, education, training, instruction, supervision or recreation for children, the elderly or individuals with disabilities and is a public, private or not-for-profit entity within the State of West Virginia and meets the definition of qualified entity under the federal National Child Protection Act of 1993; P.L. 103-209 as amended by the Volunteers for Children Act; P.L. 105-251.
§15-2C-2. Central Abuse Registry; required information; procedures. (a) The Criminal Identification Bureau of the West Virginia State Police shall establish a Central Abuse Registry, to contain information relating to criminal convictions involving child abuse or neglect, abuse or neglect of an incapacitated adult or an adult receiving behavioral health services and misappropriation of property by individuals specified in subsection (b) of this section and information relating to individuals required to be registered as a sex offender. (b) The Central Abuse Registry shall contain, at a minimum, information relating to: Convictions of a misdemeanor or a felony involving abuse, neglect or misappropriation of property, by an individual performing services for compensation, within the scope of the individual's employment or contract to provide services, in a residential care facility, in a licensed day care center in connection with providing behavioral health services, or in connection with the provision of home care services; information relating to individuals convicted of specific offenses enumerated in subsection (a), section three of this article with respect to a child or an incapacitated adult or an adult receiving behavioral health services; information relating to all individuals required to register with the Child Abuse and Neglect Registry established pursuant to article thirteen, chapter fifteen of this code; and information relating to all individuals required to register with the West Virginia State Police as sex offenders pursuant to the provisions of article twelve, chapter fifteen of this code. The Central Abuse Registry shall contain the following information: (1) The individual's full name; (2) Sufficient information to identify the individual, including date of birth, social security number and fingerprints if available; (3) Identification of the criminal offense constituting abuse, neglect or misappropriation of property of a child or an incapacitated adult or an adult receiving behavioral health services; (4) For cases involving abuse, neglect or misappropriation of property of a child or an incapacitated adult or an adult receiving behavioral health services in a residential care facility or a day care center, or of a child or an incapacitated adult or an adult receiving behavioral health services receiving home care services, sufficient information to identify the location where the documentation of any investigation by the Department of Health and Human Resources is on file and the location of pertinent court files; and (5) Any statement by the individual disputing the conviction, if he or she chooses to make and file one. (c) Upon conviction in the criminal courts of this state of a misdemeanor or a felony offense constituting child abuse or neglect or abuse or neglect of an incapacitated adult or an adult receiving behavioral health services, the individual so convicted shall be placed on the Central Abuse Registry.
§15-2C-3. Reports of certain convictions by prosecuting attorneys. (a) The central abuse registry shall maintain information relating to child abuse or neglect, abuse or neglect of an incapacitated adult or adult receiving behavioral health services, and misappropriation of property with respect to individuals convicted of certain offenses pursuant to this code, when the victim of the crime is a child or an incapacitated adult or an adult receiving behavioral health services, to include: (1) First or second degree murder pursuant to section one, article two, chapter sixty-one of this code; (2) Voluntary manslaughter pursuant to section four, article two, chapter sixty-one of this code; (3) Attempt to kill or injure by poison pursuant to section seven, article two, chapter sixty-one of this code; (4) Malicious or unlawful assault pursuant to section nine, article two, chapter sixty-one of this code; (5) Assault during commission of or attempt to commit a felony pursuant to section ten, article two, chapter sixty-one of this code; (6) Extortion by threats pursuant to section thirteen, article two, chapter sixty-one of this code; (7) Abduction of a person or kidnapping or concealing a child pursuant to section fourteen, article two, chapter sixty-one of this code; (8) Enticing away or otherwise kidnapping any person pursuant to section fourteen-a, article two, chapter sixty-one of this code; (9) A misdemeanor or felony sexual offense pursuant to article eight-b, chapter sixty-one of this code; (10) Filming of sexually explicit conduct of minors pursuant to article eight-c, chapter sixty-one of this code; (11) Misdemeanor or felony child abuse pursuant to article eight-d, chapter sixty-one of this code; (12) A violent crime against the elderly which is an offense under the provisions of section nine or ten, article two, chapter sixty-one of this code which is subject to the sentencing provisions of section ten-a of said article two; or (13) A property offense pursuant to article three, chapter sixty-one of this code, with respect to a child in a residential care facility or an incapacitated adult or an adult receiving behavioral health services in a residential care facility or a child or an incapacitated adult or an adult receiving behavioral health services who is a recipient of home care services, when the individual committing the offense was providing services for compensation in the residential care facility or within the home. (b) The prosecuting attorneys in each of the fifty-five counties within the state, upon conviction of a misdemeanor, a felony or a lesser included misdemeanor offense for those specific offenses set forth in subsection (a) of this section, shall report the conviction to the central abuse registry, together with additional information, provided in a form, as may be required by the criminal identification bureau for registry purposes. Reporting procedures shall be developed by the criminal identification bureau in conjunction with the prosecuting attorneys' institute and the office of the administrator of the Supreme Court of Appeals. (c) Information relating to convictions prior to the effective date of this section of a misdemeanor or a felony constituting child abuse or abuse or neglect of an incapacitated adult receiving behavioral health services shall, to the extent which is feasible and practicable, be placed on the central abuse registry. When any requester requests information related to a named individual, the criminal identification bureau may search and release other information maintained by the bureau to determine whether that individual has been convicted of offenses which are subject to inclusion on the registry.
§15-2C-4. Disclosure of information. (a) The information contained in the central abuse registry is confidential, and may not be disclosed except as specifically provided in this section. The criminal identification bureau shall disclose the information described in subdivisions (1) through (3) and subdivision (5), subsection (b), section two of this article to any requester, except that the name of the victim of the act alleged shall not appear on the information disclosed and shall be stricken from any statement filed by an individual. The Department of Health and Human Resources shall certify, not later than fifteen days following the effective date of this section, the list of requesters authorized to obtain registry information, and shall inform the criminal identification bureau promptly of subsequent additions and deletions from the list. The information contained in the registry with respect to an individual shall be provided to that individual promptly upon request. Individuals on the registry requesting registry information shall be afforded the opportunity to file statements correcting any misstatements or inaccuracies contained in the registry. The criminal identification bureau may disclose registry information to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign states and of the State of West Virginia upon proper request stating that the information requested is necessary in the interest of and will be used solely in the administration of official duties and the criminal laws. Agreements with other states providing for the reciprocal sharing of abuse registry information are specifically authorized. (b) An active file on requests for information by requesters shall be maintained by the criminal identification bureau for a period of one year from the date of a request. If an individual who is the subject of the request is placed on the registry with respect to any conviction within one year of the date of the request, that information shall promptly be disclosed to the requester.
§15-2C-5. Expungement of registry listing. Registry listings of abuse, neglect or misappropriation of property with respect to an individual shall promptly be expunged in cases where a conviction is vacated or overturned following appeal by a court having jurisdiction; where the record of a conviction is expunged by a court having jurisdiction; or in cases where the individual so convicted is granted executive clemency with respect to the conviction.
§15-2C-6. Fees. The criminal identification bureau may charge, and any requester shall pay a user charge of $10 for each request for information made by a requester to the central abuse registry. In order to expedite requests by requesters, the criminal identification bureau may establish a procedure permitting service providers or qualified entities as defined in section one of this article to deposit funds with the bureau in anticipation of requests. Fees pursuant to this section shall be paid into a special account in the state Treasury to be expended for registry purposes and criminal record keeping: Provided, That for and after the fiscal year ending June 30, 1998, all expenditures shall be made in accordance with appropriation by the Legislature. Amounts collected which are found from time to time to exceed the funds needed for Central Abuse Registry and criminal record keeping purposes may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. For purposes of this section, the term "criminal record keeping" means the compiling of fingerprints, photographs, criminal disposition reports, uniform crime report statistics and other relevant data regarding the arrest, conviction, incarceration and post-conviction status of criminal violators and sex offenders. "Criminal record keeping" does not include the creation of any data.
§15-2C-7. Registration of home care agencies required; form of registration; information to be provided. (a) In order to permit providers of home care services not otherwise required to be licensed, certified or registered with the Department of Health and Human Resources by other provision of this code to access information in the central abuse registry, all home care service providers not currently licensed, certified or registered by the department shall register with the office of health facilities licensure and certification. No fee may be charged for registration. Registration information shall be provided on a registration form, but no provision of information shall be deemed to meet the registration requirement until the signature of the service provider is recorded on the registration form. (b) Information required for registration shall include the following: (1) Name, address and telephone number of the service provider; (2) The geographic area where services are provided to consumers, the number of homes where services are provided and the number of consumers provided service; and (3) The services, such as nursing care or personal assistance, provided to consumers.
§15-2C-8. Service provider responsibilities. All residential care facilities, day care centers, providers to adults with behavioral health needs and home care service providers authorized to operate in West Virginia shall: (1) Provide notice to current employees of the agency and other persons providing services under a contract with the agency within sixty days of the effective date of this article, and provide notice to any newly hired employee or person at the time an employment or contractual relationship is entered into, which notice shall be in the following form: "NOTICE: All service providers in the State of West Virginia are subject to provisions of law creating a central abuse registry. Any person providing services for compensation to children or to incapacitated adults or to adults receiving behavioral health services, who is convicted of a misdemeanor or felony offense constituting abuse, neglect or misappropriation of property of a child or an incapacitated adult or an adult receiving behavioral health services, is subject to listing on the central abuse registry. The fact that a person is listed on the registry may be disclosed in specific instances provided by law. Listing on the registry may limit future employment opportunities, including opportunities for employment with residential care facilities, day care centers and home care agencies. It is the policy of __________________ [name of agency] to promptly report all suspected instances of abuse, neglect or misappropriation of property to the proper authorities and to cooperate fully in the prosecution of these offenses." (2) Cooperate fully with law enforcement, prosecuting attorneys and court personnel in criminal prosecutions of acts of child abuse or neglect or abuse or neglect of an incapacitated adult or adult receiving behavioral health services. (3) Respond promptly to all requests by other service providers for references for former or present employees of the agency, which response may include a subjective assessment as to whether the individual for whom the reference is sought is suited to provide services to children or incapacitated adults or to adults receiving behavioral health services.
§15-2C-9. Responsibilities of a Qualified Entity. (a) Any business, agency or organization that provides care, treatment, education, training, instruction, supervision or recreation for children, the elderly or individuals with disabilities and is a public, private or not-for-profit entity within the State of West Virginia and is a qualified entity as defined in section one of this article may utilize the Central Abuse Registry for part of its screening process for its current and/or prospective employees. Prospective employees and volunteers, for the purposes of this section, include contractors and vendors who have or may have unsupervised access to children or disabled or elderly persons for whom the qualified entity provides care. (b) In order to verify eligibility as a qualified entity, the business, agency or organization shall apply to the West Virginia State Police on a form prescribed by the superintendent. (c) Once verified as a qualified entity by the West Virginia State Police, the entity shall keep all records necessary to facilitate a security audit by the West Virginia State Police and shall cooperate in such audits as the West Virginia State Police or other authorities may deem necessary. Such records include, but are not limited to, criminal history records; notification that an individual has no criminal history; internal policies and procedures articulating the provisions for physical security; records of all disseminations of criminal history information; and a current, executed qualified entity user agreement with the West Virginia State Police.
ARTICLE 2D. DIVISION OF PROTECTIVE SERVICES. §15-2D-1. Legislative findings. The Legislature finds and declares that citizens, state employees and visitors who park, attend functions, conduct business or work at the capitol complex and other state facilities should be safe and secure. The Legislature further finds and declares that it is in the public interest to establish a division within the Department of Military Affairs and Public Safety for the purpose of providing safety and security to individuals who visit, conduct business or work at the capitol complex and other state facilities.
§15-2D-2. Division established; purpose; appointment and qualifications of director. (a) The state facilities protection division within the Department of Military Affairs and Public Safety shall hereafter be designated the Division of Protective Services. The purpose of the division is to provide safety and security at the capitol complex and other state facilities. (b) The Governor shall appoint, with the advice and consent of the Senate, the director of the division whose qualifications shall include at least ten years of service as a lawenforcement officer with at least three years in a supervisory law-enforcement position, the successful completion of supervisory and management training, and the professional training required for police officers at the West Virginia state police academy or an equivalent professional law-enforcement training at another state, federal or United States Military institution.
§15-2D-3. Duties and powers of the director and officers. (a) The director is responsible for the control and supervision of the division. The director and any officer of the division specified by the director may carry designated weapons and have the same powers of arrest and law enforcement in Kanawha County as members of the West Virginia State Police as set forth in subsections (b) and (d), section twelve, article two of this chapter: Provided, That the director and designated members shall have such powers throughout the State of West Virginia in investigating and performing law-enforcement duties for offenses committed on the Capitol Complex or related to the division’s security and protection duties at the Capitol Complex: Provided, however, That the director and designated members shall have said powers throughout the state relating to offenses and activities occurring on any property owned, leased or operated by the State of West Virginia when undertaken at the request of the agency occupying the property: Provided further, That nothing in this article shall be construed as to obligate the director or the division to provide or be responsible for providing security at state facilities outside the Capitol Complex. (b) Any officer of the division shall be certified as a law-enforcement officer by the Governor’s Committee on Crime, Delinquency and Correction or may be conditionally employed as a law-enforcement officer until certified in accordance with the provisions of section five, article twenty-nine, chapter thirty of this code. (c) The director may: (1) Employ necessary personnel, all of whom shall be classified exempt, assign them the duties necessary for the efficient management and operation of the division and specify members who may carry, without license, weapons designated by the director; (2) Contract for security and other services; (3) Purchase equipment as necessary to maintain security at the Capitol Complex and other state facilities as may be determined by the Secretary of the Department of Military Affairs and Public Safety; (4) Establish and provide standard uniforms, arms, weapons and other enforcement equipment authorized for use by members of the division and shall provide for the periodic inspection of the uniforms and equipment. All uniforms, arms, weapons and other property furnished to members of the division by the State of West Virginia is and remains the property of the state; (5) Appoint security officers to provide security on premises owned or leased by the State of West Virginia; (6) Upon request by the Superintendent of the West Virginia State Police, provide security for the Speaker of the West Virginia House of Delegates, the President of the West Virginia Senate, the Governor or a justice of the West Virginia Supreme Court of Appeals; (7) Gather information from a broad base of employees at and visitors to the Capitol Complex to determine their security needs and develop a comprehensive plan to maintain and improve security at the Capitol Complex based upon those needs; and (8) Assess safety and security needs and make recommendations for safety and security at any proposed or existing state facility as determined by the Secretary of the Department of Military Affairs and Public Safety, upon request of the secretary of the department to which the facility is or will be assigned. (d) The director shall: (1) On or before July 1, 1999, propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code. The rules shall, at a minimum, establish ranks and the duties of officers within the membership of the division. (2) On or before July 1, 1999, enter into an interagency agreement with the Secretary of the Department of Military Affairs and Public Safety and the Secretary of the Department of Administration, which delineates their respective rights and authorities under any contracts or subcontracts for security personnel. A copy of the interagency agreement shall be delivered to the Governor, the President of the West Virginia Senate and the Speaker of the West Virginia House of Delegates and a copy shall be filed in the office of the Secretary of State and shall be a public record. (3) Deliver a monthly status report to the Speaker of the West Virginia House of Delegates and the President of the West Virginia Senate. (e) Require any service provider whose employees are regularly employed on the grounds or in the buildings of the Capitol Complex or who have access to sensitive or critical information submit to a fingerprint-based state and federal background inquiry through the state repository, and require a new employee who is employed to provide services on the grounds or in the building of the Capitol Complex to submit to an employment eligibility check through E-verify. (1) After the contract for such services has been approved, but before any such employees are permitted to be on the grounds or in the buildings of the Capitol Complex or have access to sensitive or critical information, the service provider shall submit a list of all persons who will be physically present and working at the Capitol Complex for purposes of verifying compliance with this section. (2) All current service providers shall, within ninety days of the amendment and reenactment of this section by the eightieth Legislature, ensure that all of its employees who are providing services on the grounds or in the buildings of the Capitol Complex or who have access to sensitive or critical information submit to a fingerprint-based state and federal background inquiry through the state repository. (3) Any contract entered into, amended or renewed by an agency or entity of state government with a service provider shall contain a provision reserving the right to prohibit specific employees thereof from accessing sensitive or critical information or to be present at the Capitol Complex based upon results addressed from a criminal background check. (4) For purposes of this section, the term “service provider” means any person or company that provides employees to a state agency or entity of state government to work on the grounds or in the buildings that make-up the Capitol Complex or who have access to sensitive or critical information. (5) In accordance with the provisions of Public Law 92-544 the criminal background check information will be released to the Director of the Division of Protective Services. (f) Effective July 1, 2017, the Director of Security and security officers of the Division of Culture and History shall be made part of, and be under the supervision and direction of the Division of Protective Services. Security for all Capitol Complex properties of the Division of Culture and History shall be the responsibility of the Division of Protective Services.
§15-2D-4. Oath of office. (a) The director and each member of the division shall take and subscribe to an oath of office in conformity with article IV, section five of the Constitution of the State of West Virginia. (b) Any member serving on the effective date of this article shall take and subscribe to the oath within thirty days of the effective date of this section. Any member hired subsequent to the effective date of this section shall take and subscribe to the oath before entering upon the discharge of his or her duties. All oaths shall be filed and preserved in the office of the Division of Protective Services.
§15-2D-5. Application of article. (a) The provisions of this article shall not apply to the West Virginia Senate, the West Virginia House of Delegates, the West Virginia Legislature or the West Virginia Supreme Court of Appeals, or to any part of the capitol complex under the supervision or control of the West Virginia Senate, the West Virginia House of Delegates, the West Virginia Legislature or the West Virginia Supreme Court of Appeals, unless agreed to by the president of the West Virginia Senate, the speaker of the West Virginia House of Delegates, or jointly by the president of the West Virginia Senate and speaker of the West Virginia House of Delegates, or by order of the West Virginia Supreme Court of Appeals, and then only to the extent that the president of the West Virginia Senate, the speaker of the West Virginia House of Delegates or the West Virginia Supreme Court of Appeals agrees to such application, and then only to that part of the capitol complex under the supervision or control of the respective houses of the Legislature, individually or jointly, or of the court. (b) The provisions of this article shall not limit or eliminate the jurisdiction of law-enforcement agencies at any state facility or the duty of law-enforcement agencies to respond to calls at any state facility.
§15-2D-6. Repealed. Acts, 2010 Reg. Sess., Ch. 32.
§15-2D-7. Security enforcement fund. There is hereby created in the state Treasury a special revenue fund designated the "security enforcement fund." The money of the fund shall be made available for investment under the provisions of article six, chapter twelve of this code. The fund shall consist of all gifts, grants, bequests, transfers, appropriations or other donations which may be received from any governmental entity or unit or any person, firm, foundation, corporation, association or other entity, and all interest or other return accruing to the fund. The money in the fund shall be used for the operation of the division and for the costs and expenses incurred pursuant to this article. Any balance including accrued interest in the fund at the end of any fiscal year shall not revert to the General Fund but shall remain in the fund for those purposes.
ARTICLE 2E. STATE POLICE ACADEMY POST EXCHANGE. §15-2E-1. Definitions. As used in this article: (1) "Certain limited items" means personal grooming and hygiene products, food and beverages, convenience items, and items bearing the State Police emblem or other insignia that are necessary for training purposes. (2) "Post exchange" means a particular area located at the State Police academy where certain limited items are offered for sale. (3) "State police academy" means the law-enforcement training facility established pursuant to section three, article two of this chapter located at Institute, West Virginia, or an additional or successor location. (4) "Superintendent" means the superintendent of State Police as established in section two, article two of this chapter. (5) "Training" means and includes instruction for members of the State Police, county sheriffs and deputies, municipal police, law-enforcement officers employed by the Division of Natural Resources, and other persons employed by state or local governmental units charged with enforcing state or local laws, regardless of the length of instruction.
§15-2E-2. Post exchange authorized. Notwithstanding any other provision of this code to the contrary, the superintendent is authorized to establish and operate a post exchange at the State Police academy.
§15-2E-3. Operation of post exchange. (a) The State Police post exchange may offer items for sale as approved by the superintendent. (b) The post exchange may only be open at such times as may be established by the superintendent. (c) The superintendent shall appoint state police employees to supervise the operation of the post exchange. (d) The superintendent shall establish a system of bookkeeping, accounting and auditing procedures for the proper handling of funds derived from the operation of the post exchange. (e) The superintendent shall post a sign in the post exchange which states: “In accordance with the provisions of section seventeen, article two, chapter fifteen of the code, it is unlawful for every person who is not a member of the State Police to wear or use the State Police uniform, badge, emblem or other insignia. Any person, who is not a member of the State Police, who wears or uses the State Police uniform, badge, emblem or other insignia shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined or jailed or both fined and jailed”.
§15-2E-4. Creation of special account. All moneys collected from operation of the post exchange and any money collected from vending machine sales made pursuant to section three-d, article ten-g, chapter eighteen of this code, shall be deposited in a special account in the state Treasury to be known as the "state police academy post exchange". Expenditures from the fund must be for the purposes set forth in section five of this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a of this code: Provided, That for the fiscal year ending June 30, 2002, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.
§15-2E-5. Use of funds from post exchange revenue. All proceeds derived from the operation of the post exchange and any money derived from the operation of vending machines, after the payment of operating expenses, notwithstanding any provision of this code to the contrary, must be used exclusively for the publication of the cadet class yearbook, capital outlay, equipment and for repair and alteration of the State Police academy.
§15-2E-6. Post exchange reporting requirements. The superintendent shall complete and submit to the Governor and the Legislature by the first day of each regular legislative session a report on the amount of funds derived from the operation of the post exchange during the previous fiscal year and how those funds were used.
§15-2E-7. Legislative rules. The superintendent may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code relating to the establishment and operation of the post exchange.
§15-2E-8. Repealed. Acts, 2010 Reg. Sess., Ch. 32.
ARTICLE 3. COMMUNICATION SYSTEMS FOR POLICE PURPOSES. §15-3-1. Communication system for department of public safety. The superintendent of the department of public safety is authorized and empowered to establish such systems of communication for the department as may be appropriate, including one or more radio broadcasting stations in the state, one of which shall be at the departmental headquarters. Such systems shall be used for police purposes only. The superintendent is further authorized and empowered to provide for the purchase of the necessary apparatus and equipment, and of materials for the construction and maintenance of such systems, and shall be responsible for the operation, maintenance and conduct thereof.
§15-3-2. Radio transmitters operating on the State Police frequency. No person in this state shall operate any radio transmitter on any frequency assigned by the federal communications commission to the department of public safety unless authorized by the superintendent of the department of public safety. Such authorization may be revoked by the superintendent whenever he finds that such transmitter is being operated in violation of any law or of any rule and regulation promulgated by the superintendent.
§15-3-3. Use of police radio stations. The superintendent of the department of public safety shall broadcast all police dispatches and reports submitted which, in his opinion, have a reasonable relation to or connection with the apprehension of criminals, the prevention of crime, or the maintenance of peace, safety and order in the state. It shall be the duty of every sheriff and of the police authorities of every municipality to report to the superintendent such information as he may request and at the times and in the form requested.
§15-3-4. Priority of calls to police radio stations. Every telegraph and telephone company operating in this state shall give priority to all messages or calls directed to the State Police radio station or stations provided for in this article. A person responsible for failure to do so shall be guilty of a misdemeanor and, upon conviction thereof fined not to exceed $500.
§15-3-5. Use of information obtained by interceptions of transmissions on department of public safety communications system forbidden; penalties. No person shall intercept any message or transmission made on or over any communications system established by the department of public safety and use the information obtained thereby to aid, abet or assist in committing a crime, or in violating any law of this state, or use the same in a manner which will interfere with the discharge of the department's operations. Any person who violates any provision of this section or of section two of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to confinement in the county jail for a period not to exceed one year or by a fine of an amount not to exceed $500 or by both such confinement and fine in the discretion of the court.
§15-3-6. Location of police radio stations. The superintendent of the department of public safety is empowered to authorize a statewide survey, and to seek cooperation of the federal communications commission in the survey, to determine suitable locations for the state radio station or stations provided for in this article.
§15-3-7. Staffs of police radio stations. The superintendent of the department of public safety may employ, establish the qualifications for and, within the limits of available funds, fix the salaries of radio engineers, radio technicians, radio operators, radio teletype operators and other personnel as may be necessary to effectuate the purposes of this article.
§15-3-8. Superintendent to make rules and regulations to carry out article. The superintendent of the department of public safety shall have authority to prescribe and promulgate reasonable rules and regulations to carry out the purposes of this article.
§15-3-9. Jurisdiction of justices to enforce article. Justices of the peace shall have concurrent jurisdiction with other courts in the enforcement of this article.
§15-3-10. Disclosure of location information; emergency situations. (a) Upon request of a law-enforcement agency, a wireless telecommunications carrier or internet account provider shall provide location information concerning the telecommunications device of the user to the requesting law-enforcement agency in order to respond to a call for emergency services or in an emergency situation that involves the risk of death or serious physical harm. (b) Notwithstanding any other provision of law to the contrary, nothing in this section prohibits a wireless telecommunications carrier or internet account provider from establishing protocols to respond to a law enforcement agency request for location information in an emergency situation or a call for emergency services. (c) No cause of action shall lie in any court against any wireless telecommunications carrier or internet account provider, its officers, employees, agents or other specified persons for providing location information while acting in good faith and in accordance with the provisions of this section. (d) (1) All wireless telecommunications carriers or internet account providers registered to do business in the State of West Virginia or submitting to the jurisdiction thereof and all resellers of wireless telecommunications services shall submit their emergency contact information to the West Virginia State Police in order to facilitate requests from a law-enforcement agency for location information in accordance with this section. This contact information must be submitted annually by June 15th or immediately upon any change in contact information. (2) The State Police shall maintain a database containing emergency contact information for all wireless telecommunications carriers or internet account providers registered to do business in the State of West Virginia and shall make the information immediately available upon request to all public safety answer points in the state. (e) The Superintendent of the West Virginia State Police shall prescribe and promulgate reasonable rules to fulfill the requirements of this section no later than July 1, 2014. (f) This section shall be known and may be cited as the "Kelsey Smith Act."
ARTICLE 3A. AMBER ALERT PLAN. §15-3A-1. Short title. This article shall be known and may be cited as "Amber's Plan".
§15-3A-2. Findings and determinations relative to "Amber's Plan". (a) The Legislature finds and determines that: (1) Public alerts can be one of the most effective tools in combating child abductions; (2) Law-enforcement officers and other professionals specializing in the field of abducted and missing children agree that the most critical moments in the search for an abducted child are the first few hours immediately following the abduction, asserting that if a child is not found within two to four hours, it is unlikely that child will be found alive; (3) The rapid dissemination of information, including a description of the abducted child, details of the abduction, abductor and vehicle involved, to the citizens of the affected community and region is, therefore, critical; (4) Alerted to an abduction, the citizenry become an extensive network of eyes and ears serving to assist law enforcement in quickly locating and safely recovering the child; (5) The most effective method of immediately notifying the public of a child abduction is through the broadcast media; and (6) That in addition to public alerts, other tools allowing rapid response and identification of the movements of persons suspected in a child abduction require the use of all forms of developing technologies to assist law enforcement in rapid response to these alerts and is an additional tool for assuring the well being and safety of our children. Thus, the use of traffic video recording and monitoring devices for the purpose of surveillance of a suspect vehicle adds yet another set of eyes to assist law enforcement and aid in the safe recovery of the child. (b) The Legislature declares that given the successes other states and regions have experienced in using broadcast media alerts to quickly locate and safely recover abducted children, and, with the recent development of highway video recording and monitoring systems, it is altogether fitting and proper, and within the public interest, to establish these programs for West Virginia.
§15-3A-3. Establishment of "Amber's Plan". (a) The secretary of the Department of Military Affairs and Public Safety shall establish "Amber's Plan", a program authorizing the broadcast media, upon notice from the State Police, to transmit an emergency alert to inform the public of a child abduction. The program shall be a voluntary, cooperative effort between state and local law-enforcement agencies and the broadcast media. (b) The secretary shall notify the broadcast media serving the State of West Virginia of the establishment of "Amber's Plan" and invite their voluntary participation.
§15-3A-4. Activation of Amber Alert. (a) The following criteria shall be met before the State Police activate the Amber Alert: (1) The child is believed to be abducted; (2) The child is seventeen years of age or younger; (3) The child may be in danger of death or serious bodily injury; and (4) There is sufficient information available to indicate that an Amber Alert would assist in locating the child. (b) In the event of suspicion that a child has been abducted or is missing, and in the initial stages of a missing or abducted child investigation, the reporting law enforcement agency shall contact the West Virginia State Police Communications Center by telephone. The communications center will then contact the Amber Alert Coordinator to determine if the Amber Alert criteria are satisfied."
§15-3A-5. Notice to participating media; broadcast of alert. (a) The participating media shall voluntarily agree, upon notice from the State Police, to transmit emergency alerts to inform the public of a child abduction that has occurred within their broadcast service regions. (b) The alerts shall be read after a distinctive sound tone and a statement notifying that the broadcast is an abducted child alert. The alerts shall be broadcast as often as possible, pursuant to guidelines established by the West Virginia Broadcasters' Association, for the first three hours. After the initial three hours, the alert shall be rebroadcast at such intervals as the investigating authority, the State Police and the participating media deem appropriate. (c) The alerts shall include a description of the child, such details of the abduction and abductor as may be known, and such other information as the State Police may deem pertinent and appropriate. The state police shall in a timely manner update the broadcast media with new information when appropriate concerning the abduction. (d) The alerts also shall provide information concerning how those members of the public who have information relating to the abduction may contact the State Police or other appropriate law-enforcement agency. (e) Concurrent with the notice provided to the broadcast media, the State Police shall also notify the Department of Transportation, the Division of Highways and the West Virginia turnpike commission of the "Amber Alert" so that the department and the affected authorities may, if possible, through the use of their variable message signs, inform the motoring public that an "Amber Alert" is in progress and may provide information relating to the abduction and how motorists may report any information they have to the State Police or other appropriate law-enforcement agency. (f) The alerts shall terminate upon notice from the State Police. (g) The secretary, with the assistance of the participating broadcast media, shall develop and undertake a campaign to inform law-enforcement agencies about "Amber's Plan" and the emergency alert program established under this article.
§15-3A-6. Guidelines; procedural rules. The secretary may adopt guidelines and procedural rules to effectuate the purposes of this article.
§15-3A-7. Providing for the use of video image recording devices for search purposes during an Amber Alert or Silver Alert Activation. (a) The State Police and the Division of Highways shall coordinate a process to utilize all available video recording and monitoring devices for the purpose of monitoring Amber Alert or Silver Alert suspect vehicles. This program shall be called the "Guardian Angel Video Monitoring" Program. (b) The Secretary of Military Affairs and Public Safety shall also develop a plan to provide for the State Police to monitor and utilize video recording and monitoring devices during an Amber Alert or Silver Alert. This "Guardian Angel Video Monitoring" implementation plan shall include at a minimum, the following: (1) Utilization of any state or local video recording and monitoring devices upon agreement with the department, agency or political subdivision in control of the video recording device; and, (2) Development of policies and initiatives relating to facilitating sharing of information with neighboring states wherein suspect vehicles in Amber Alerts or Silver Alerts may be crossing state lines. (c) The secretary shall submit the plan to the Joint Committee on Government and Finance no later than December 1, 2008. The plan shall include an analysis of all related costs for equipping and using a statewide video recording and monitoring system during the duration of an Amber Alert and recommendations for any additional legislation or actions necessary to further facilitate the implementation of the "Guardian Angel Video Monitoring" program.
ARTICLE 3B. SILVER ALERT PLAN. §15-3B-1. Short title. This article shall be known and may be cited as "Silver Alert Plan".
§15-3B-2. Findings and declarations relative to “Silver Alert Plan”. (a) The Legislature finds that: (1) Public alerts can be one of the most effective tools in locating missing cognitively impaired persons or senior citizens; (2) Law-enforcement officers and other professionals specializing in the field of missing persons agree that the most critical moments in the search for a missing person are the first few hours immediately following the discovery that the individual is missing, asserting that if he or she is not found within twenty-four hours, it is unlikely that he or she will be found alive or without serious injury. The rapid dissemination of information, including a description of the missing cognitively impaired person or senior citizen, details of how he or she became missing, and of any vehicle involved, to the citizens of the affected community and region is, therefore, critical; (3) Alerted to the situation, the citizenry become an extensive network of eyes and ears serving to assist law enforcement in quickly locating and safely recovering a missing cognitively impaired person or senior citizen; (4) The most effective method of immediately notifying the public of a missing cognitively impaired person or senior citizen is through the broadcast media; and (5) All forms of developing technologies are required to assist law enforcement in rapidly responding to these alerts and are an additional tool for assuring the well being and safety of our cognitively impaired citizenry. Thus, the use of traffic video recording and monitoring devices for the purpose of surveillance of a suspect vehicle adds yet another set of eyes to assist law enforcement and aid in the safe recovery of the cognitively impaired person or senior citizen. (b) The Legislature declares that given the successes other states and regions have experienced in using broadcast media alerts to quickly locate and safely recover missing persons, and, with the recent development of highway video recording and monitoring systems, it is altogether fitting and proper, and within the public interest, to establish these programs for West Virginia.
§15-3B-3. Establishment of “Silver Alert” program. (a) The Secretary of the Department of Military Affairs and Public Safety shall establish a “Silver Alert” program authorizing the broadcast media, upon notice from the State Police, to broadcast an alert to inform the public of a missing cognitively impaired person or a missing senior citizen, subject to the criteria established in section four of this article. The program shall be a voluntary, cooperative effort between state law-enforcement and the broadcast media. (b) As used in this article: (1) “Cognitively impaired” means a person having a deficiency in his or her short-term or long-term memory, orientation as to person, place, and time, deductive or abstract reasoning, or judgment as it relates to safety: Provided, That the cognitive impairment is not caused by the use of alcohol or drugs not legally prescribed by a physician; and (2) “Senior citizen” means a person over sixty-five years of age. (c) The secretary shall notify the broadcast media serving the State of West Virginia of the establishment of “Silver Alert” program and invite their voluntary participation. (d) The secretary shall submit a plan to the Joint Committee on Government and Finance no later than December 1, 2009. The plan shall include “Silver Alert” activation protocols, evaluation of first responder training requirements and needs as related to cognitively impaired persons and senior citizens, coordination and utilization of established programs and analysis of any costs. The secretary shall also make recommendations for any additional legislation or actions necessary to further facilitate the implementation of the “Silver Alert” program.
§15-3B-4. Activation of Silver Alert. The following criteria shall be met before the State Police activate the Silver Alert: (1) The person is believed to be cognitively impaired or is a senior citizen; (2) The person is believed to be missing, regardless of circumstance; (3) A person who has knowledge that the person is missing has submitted a missing person’s report to the State Police or other appropriate law-enforcement agency; (4) The missing person may be in danger of death or serious bodily injury; (5) The missing person is domiciled or believed to be located in the State of West Virginia; (6) The missing person is, or is believed to be, at a location that cannot be determined by an individual familiar with the missing person, and the missing person is incapable of returning to the missing person’s residence without assistance; and (7) There is sufficient information available to indicate that a Silver Alert would assist in locating the missing person.
§15-3B-5. Notice to participating media; broadcast of alert. (a) To participate, the media may agree, upon notice from the State Police via email or facsimile, to transmit information to the public about a missing cognitively impaired person or senior citizen that has occurred within their broadcast service region. (b) The alerts shall include a description of the missing cognitively impaired person or senior citizen, such details of the circumstance surrounding him or her becoming missing, as may be known, and such other information as the State Police may deem pertinent and appropriate. The State Police shall in a timely manner update the broadcast media with new information when appropriate concerning the missing cognitively impaired person or senior citizen. (c) The alerts also shall provide information concerning how those members of the public who have information relating to the missing cognitively impaired person or senior citizen may contact the State Police or other appropriate law-enforcement agency. (d) Concurrent with the notice provided to the broadcast media, the State Police shall also notify the Department of Transportation, the Division of Highways and the West Virginia Turnpike Commission of the “Silver Alert” so that the department and the affected authorities may, if possible, through the use of their variable message signs, inform the motoring public that a “Silver Alert” is in progress and may provide information relating to the missing cognitively impaired person or senior citizen and how motorists may report any information they have to the State Police or other appropriate law-enforcement agency. (e) The alerts shall terminate upon notice from the State Police. (f) The secretary shall develop and undertake a campaign to inform law-enforcement agencies about the “Silver Alert” program established under this article.
§15-3B-6. Aid to missing cognitively impaired adult or senior citizen; immunity from civil or criminal liability. No person or entity who in good faith follows and abides by the provisions of this article is liable for any civil or criminal penalty as the result of any act or omission in the furtherance thereof unless it is alleged and proven that the information disclosed was false and disclosed with the knowledge that the information was false.
ARTICLE 4. WEST VIRGINIA STATE GUARD. §15-4-1. Governor authorized to organize and maintain West Virginia state guard. Whenever any part of the National Guard of this state is in active federal service, the Governor is hereby authorized to organize and maintain within this state during such period, under such regulations as the secretary of defense of the United States may prescribe for discipline in training, such military forces as the Governor may deem necessary to defend this state. Such forces shall be composed of officers commissioned or assigned, and such able-bodied male citizens of the state as shall volunteer for service therein, supplemented, if necessary, by men of the reserve militia enrolled by draft or otherwise as provided by law. Such forces shall be additional to and distinct from the National Guard and shall be known as the "West Virginia state guard": Provided, That any funds appropriated by the Legislature to the Adjutant General for the organization, administration, training and supply of the organized militia may be expended for such purposes with respect to the West Virginia state guard. Such forces shall be uniformed.
§15-4-2. Rules and regulations. The Governor is hereby authorized to prescribe rules and regulations not inconsistent with the provisions of this article governing the enlistment, organization, administration, equipment, maintenance, training and discipline of such forces: Provided, That such rules and regulations, insofar as he deems practicable and desirable, shall conform to existing law governing and pertaining to the National Guard and the rules and regulations promulgated thereunder, and shall prohibit the acceptance of gifts, donations, gratuities or anything of value by such forces or by any member of such forces from any individual, firm, association, or corporation by reason of such membership.
§15-4-3. Pay and allowances. The pay for officers and enlisted men of the West Virginia state guard for service at camps of instruction, rifle practice, practice marches and maneuvers, or other duties ordered by the Governor, shall be such as are provided in the National Defense Act or amendments thereto. Officers and enlisted men, when employed in the actual service of the state, as defined and provided in this article, beginning on the day they assembled at their armories or other designated places, until the day they have returned thereto and been properly relieved, inclusive, fractional parts of a day counting as a full day, shall receive the same pay and allowances as provided for officers and enlisted men in the West Virginia National Guard.
§15-4-4. Arms and equipment; use of state armories, etc. For use of such forces, the Governor is hereby authorized to requisition from the secretary of war such arms and equipment as may be in possession of and can be spared by the war department; and to make available to such forces the facilities of state armories and their equipment and such other state premises and property as may be available.
§15-4-5. Service limited to state, except as to fresh pursuit; apprehension of persons in another state. Such forces shall not be required to serve outside the boundaries of this state. Except that any organization, unit or detachment of such forces, upon order of the officer in immediate command thereof, may continue in fresh pursuit of insurrectionists, saboteurs, enemies or enemy forces beyond the borders of this state into another state until they are apprehended or captured by such organization, unit or detachment or until the military or police forces of the other state or the forces of the United States have had a reasonable opportunity to take up the pursuit or apprehend or capture such persons: Provided, That such other state shall have given authority by law for such pursuit by such forces of this state. Any such person who shall be apprehended or captured in such other state by an organization, unit or detachment of the forces of this state shall without unnecessary delay be surrendered to the military or police forces of the state in which he is taken or to the United States, but such surrender shall not constitute a waiver by this state of its right to extradite or prosecute such person for any crime committed in this state.
§15-4-6. Pursuit and apprehension of certain persons in this state by military forces of another state. Any military forces or organization, unit or detachment thereof, of another state, who are in fresh pursuit of insurrectionists, saboteurs, enemies or enemy forces, may continue such pursuit into this state until the military or police forces of this state or the forces of the United States have had a reasonable opportunity to take up the pursuit or to apprehend or capture such persons and are hereby authorized to arrest or capture such persons within this state while in fresh pursuit. Any such person who shall be captured or arrested by the military forces of such other state while in this state shall, without unnecessary delay, be surrendered to the military or police forces of this state to be dealt with according to law. This section shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful, and nothing contained in this section shall be deemed to repeal any of the provisions of the uniform act on the fresh pursuit of criminals.
§15-4-7. Status of forces and members thereof with regard to federal service. Nothing in this article shall be construed as authorizing such forces, or any part thereof, to be called, ordered or in any manner drafted as such, into the military service of the United States, but no person shall by reason of his enlistment or commission in any such forces be exempted from military service under any law of the United States.
§15-4-8. Civil organizations, etc., not to be enlisted as unit. No civil organization, society, club, post, order, fraternity, association, brotherhood, body, union, league, or other combination of persons or civil group shall be enlisted in such forces as an organization or unit.
§15-4-9. Disqualifications. No person shall be commissioned or enlisted in such forces who is not a citizen of the United States or who has been expelled or dishonorably discharged from any military or naval organization of this state, or of another state, or of the United States.
§15-4-10. Oath of officers. The oath to be taken by officers commissioned in such forces shall be substantially in the form prescribed for officers of the National Guard, substituting the words "West Virginia state guard" where necessary.
§15-4-11. Term of enlistment; oath of enlisted men. No person shall be enlisted for more than one year but such enlistment may be renewed. The oath to be taken upon enlistment in such forces shall be substantially in the form prescribed for enlisted men of the National Guard, substituting the words "West Virginia state guard" where necessary.
§15-4-12. Articles of war to apply as to court-martial, etc.; freedom from arrest; jury duty. (a) Whenever such forces or any part thereof shall be ordered out for active service the articles of war of the United States applicable to members of the National Guard of this state in relation to courts-martial, their jurisdiction and the limits of punishment and the rules and regulations prescribed thereunder shall be in full force and effect with respect to the West Virginia state guard. (b) No officer or enlisted man of such forces shall be arrested on any warrant, except for treason or felony, while going to, remaining at, or returning from a place where he is ordered to attend for military duty. Every officer and enlisted man of such forces shall, during his service therein, be exempt from service upon any posse comitatus and from jury duty.
§15-4-13. Citation of article. This article may be cited as the "West Virginia State Guard Act."
ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT. §15-5-1. Policy and purpose. In view of the existing and increasing possibility of the occurrence of disasters of unprecedented size and destructiveness and large-scale threats, resulting from terrorism, enemy attack, sabotage or other hostile action, or from fire, flood, earthquakes or other natural or man-made causes and in order to insure that preparations of this state will be adequate to deal with the disasters and large-scale threats, and generally to provide for the common defense and to protect the public peace, health and safety and to preserve the lives and property of the people of the state, it is found and declared to be necessary: (1) To create the Division of Homeland Security and Emergency Management and to authorize the creation of local and regional organizations for emergency services in the political subdivisions of the state; (2) to confer upon the Governor and upon the executive heads of governing bodies of the political subdivisions of the state the emergency powers provided herein; (3) to provide for the rendering of mutual aid among the political subdivisions of the state and with other states and to cooperate with the federal government with respect to the carrying out of emergency services and homeland security functions; and (4) to establish and implement comprehensive homeland security and emergency management plans to deal with such disasters and large-scale threats. It is further declared to be the purpose of this article and the policy of the state that all homeland security and emergency management funds and functions of this state be coordinated to the maximum extent with the Secretary of the Department of Military Affairs and Public Safety and with the comparable functions of the federal government including its various departments and agencies, of other states and localities and of private agencies of every type, so that the most effective preparation and use may be made of the nation's and this state's manpower, resources and facilities for dealing with any disaster or large-scale threat that may occur.
§15-5-2. Definitions. As used in this article: (a) "Emergency services" means the preparation for and the carrying out of all emergency functions, other than functions for which military forces are primarily responsible, to protect, respond and recover, to prevent, detect, deter and mitigate, to minimize and repair injury and damage resulting from disasters or other event caused by flooding, terrorism, enemy attack, sabotage or other natural or other man-made causes. These functions include, without limitation, firefighting services, police services, medical and health services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to the health, safety and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions. Disaster includes the imminent threat of disaster as well as its occurrence and any power or authority exercisable on account of a disaster that may be exercised during the period when there is an imminent threat thereof; (b) "Local organization for emergency services" means an organization created in accordance with the provisions of this article by state or local authority to perform local emergency services function; (c) "Mobile support unit" means an organization for emergency services created in accordance with the provisions of this article by state or local authority to be dispatched by the Governor to supplement local organizations for emergency services in a stricken area; (d) "Political subdivision" means any county or municipal corporation in this state; (e) "Board" means the West Virginia Disaster Recovery Board created by this article; (f) "Code" means the Code of West Virginia, 1931, as amended; (g) "Community facilities" means a specific work or improvement within this state or a specific item of equipment or tangible personal property owned or operated by any political subdivision or nonprofit corporation and used within this state to provide any essential service to the general public; (h) "Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or terrorist or man-made cause, including weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation or other public calamity requiring emergency action; (i) "Disaster recovery activities" means activities undertaken prior to, during or following a disaster to provide, or to participate in the provision of, emergency services, temporary housing, residential housing, essential business activities and community facilities; (j) "Essential business activities" means a specific work or improvement within this state or a specific item of equipment or tangible personal property used within this state by any person to provide any essential goods or service deemed by the authority to be necessary for recovery from a disaster; (k) "Person" means any individual, corporation, voluntary organization or entity, partnership, firm or other association, organization or entity organized or existing under the laws of this or any other state or country; (l) "Recovery fund" means the West Virginia Disaster Recovery Trust Fund created by this article; (m) "Residential housing" means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for residential housing, including, but not limited to, facilities for temporary housing and emergency housing, and such other nonhousing facilities as may be incidental or appurtenant thereto; (n) "Temporary housing" means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for temporary residential shelters or housing for victims of a disaster and such other nonhousing facilities as may be incidental or appurtenant thereto; and (o) "Secretary" means the Secretary of the West Virginia Department of Military Affairs and Public Safety.
§15-5-3. Division of Homeland Security and Emergency Management created. (a) The Office of Emergency Services is continued as the Division of Homeland Security and Emergency Management within the Department of Military Affairs and Public Safety. All of the allied, advisory, affiliated or related entities and funds associated with the Office of Emergency Services and all its functions, personnel and property, are transferred to, incorporated in and administered as a part of the Division of Homeland Security and Emergency Management. Wherever the words "Office of Emergency Services" appear in this code, they shall mean the Division of Homeland Security and Emergency Management. (b) A Director of the Division of Homeland Security and Emergency Management shall be appointed by the Governor, by and with the advice and consent of the Senate. The Governor shall consider applicants for Director who at a minimum: (1) Have at least five years managerial or strategic planning experience; (2) are knowledgeable in matters relating to public safety, homeland security, emergency management and emergency response; and (3) have at a minimum, a federally issued secret level security clearance or have submitted to or will submit to a security clearance investigation for the purpose of obtaining, at a minimum, a federally issued secret level security clearance. (c) The Director may employ such technical, clerical, stenographic and other personnel, fix their compensation and make expenditures within the appropriation to the Division or from other funds made available for the purpose of providing homeland security and emergency management services to carry out the purpose of this article. Employees of the Division of Homeland Security and Emergency Management shall be members of the state Civil Service System and all appointments of the office, except those required by law to be exempt, shall be a part of the classified service under the Civil Service System. (d) The Director and other personnel of the Division of Homeland Security and Emergency Management shall be provided with appropriate office space, furniture, equipment, supplies, stationery and printing in the same manner as provided for personnel of other state agencies. (e) The Director, subject to the direction and control of the Governor through the Secretary of the Department of Military Affairs and Public Safety, shall be executive head of the Division of Homeland Security and Emergency Management and shall be responsible to the Governor and the Secretary of the Department of Military Affairs and Public Safety for carrying out the program for homeland security and emergency management in this state. The Director in consultation with the Secretary of the Department of Military Affairs and Public Safety shall coordinate the activities of all organizations for homeland security and emergency management within the state and maintain liaison with and cooperate with homeland security, emergency management and other emergency service and civil defense agencies and organizations of other states and of the federal government, and shall have additional authority, duties and responsibilities authorized by this article as may be prescribed by the Governor or the Secretary of the Department of Military Affairs and Public Safety. (f) The Director shall have the power to acquire in the name of the state by purchase, lease or gift, real property and rights or easements necessary or convenient to construct thereon the necessary building or buildings for housing and homeland security and emergency management control center.
§15-5-4. West Virginia disaster recovery board created; organization of board; appointment of board members; term of office and expenses of board members; meetings. (a) There is hereby created the West Virginia disaster recovery board. The board shall advise the Governor and the director on all matters pertaining to emergency services and to perform such other duties as set forth in this article. The board shall be composed of nine members, seven of whom shall be appointed by the Governor by and with the advice and consent of the Senate, and one of whom shall be the Governor or his or her designee, who shall be chairman of the board and one of whom shall be the secretary of the department of public safety or his or her designee. The successor of each such appointed member shall be appointed in the same manner as the original appointments were made. No more than four of the appointed board members shall at any one time belong to the same political party: Provided, That each congressional district of this state shall be represented by a member of the board. (b) The provisions of this subsection apply to the seven members appointed by the Governor. They shall be appointed for overlapping terms of three years and until their respective successors have been appointed and have qualified. For the purpose of original appointments, three members shall be appointed for a term of three years, two members shall be appointed for a term of two years, and two members shall be appointed for a term of one year. Members may be reappointed for any number of terms. Before entering upon the performance of his or her duties, each member shall take and subscribe to the oath prescribed by section five, article four of the Constitution of this state. Vacancies shall be filled by appointment by the Governor for the unexpired term of the member whose office shall be vacant and such appointment shall be made within sixty days of the occurrence of such vacancy. Members shall receive no compensation for the performance of their duties as members, but shall be entitled to be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties. (c) A majority of the members of the board constitutes a quorum and meetings shall be held at the call of the chairman. No vacancy or absence in the membership of the board shall impair the rights of a quorum by a vote of the majority participating in such meeting to exercise all the rights and perform all the duties of the board and the authority. (d) Upon the occurrence of a disaster requiring immediate action by the board, meetings of the board may be held by telephone conference call or other electronic communications and shall be exempt from the notice requirements of article nine-a, chapter six of this code. Any action taken pursuant to a vote of the board at any such meeting shall not be subject to invalidation by a person adversely affected by such action. (e) The board shall annually elect one of the appointed members as vice chairman, and shall appoint one of its appointed members as secretary-treasurer. The member appointed as secretary-treasurer shall give bond in the sum of $50,000 in the manner provided in article two, chapter six of this code. (f) All expenses incurred by the board shall be payable solely from funds of the board or from funds appropriated for such purpose by the Legislature and no liability or obligation shall be incurred by the board beyond the extent to which moneys are available from funds of the board or from such appropriations. (g) Due to the fact that a natural disaster could strike any part of the state at any time, it is necessary to effectuate a means to immediately implement the provisions of this article. Therefore, until the board has been appointed the Governor shall have the authority to: (1) Accept and expend any private funds and expend no more than $1 million of the Governor's contingency fund for fiscal year one thousand nine hundred ninety to provide disaster relief as authorized in this article for any counties where disasters may occur before the board is appointed; and (2) Report to the board when it is appointed on moneys expended and actions taken so that the board may include this information in its annual report required by section twelve of this article.
§15-5-4b. West Virginia disaster recovery board to disburse funds from recovery fund. The board shall have the power, upon its own determination that a disaster has occurred or is about to occur in this state, to disburse funds from the disaster relief recovery trust fund created pursuant to section twenty-four of this article to any person, political subdivision or local organization for emergency services in such amounts and in such manner, and to take such other actions, as the board may determine is necessary or appropriate in order to provide assistance to any person, political subdivision or local organization for emergency services responding to or recovering from the disaster, or otherwise involved in disaster recovery activities.
§15-5-4c. Powers and duties of the West Virginia disaster recovery board. The board is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purposes set forth in section four-b of this article. The authority has the power: (1) To accept appropriations, gifts, grants, bequests and devises from any source, public or private, for deposit into the recovery fund, and to use or dispose of the same to provide assistance to any person, political subdivision or local organization for emergency services responding to or recovering from a disaster, or otherwise involved in disaster recovery activities; (2) To make and execute contracts, leases, releases and other instruments necessary or convenient for the exercise of its power; (3) To make, and from time to time, amend and repeal bylaws for the governance of its activities not inconsistent with the provisions of this article; (4) To sue and be sued; (5) To acquire, hold and dispose of real and personal property; (6) To enter into agreements or other transactions with any federal or state agency, political subdivision or person; (7) To provide for the deposit of any funds or assets of the West Virginia disaster relief recovery trust fund with the state Board of Investments for investment; (8) To procure insurance against any loss in connection with its property in such amounts, and from such insurers, as may be necessary or desirable; (9) To use the recovery trust fund to pay the costs incurred by any state department or agency for the purpose of obtaining property appraisals and other certifications necessary to justify the involvement of the federal emergency management agency and to allow its determination of a presidentially declared disaster; (10) To establish, or assist in the establishment of, temporary housing and residential housing by, with or for political subdivisions declared to be in a disaster area by the federal emergency management agency or other agency or instrumentality of the United States or by the Governor of this state; (11) To enter into purchase, lease, or other arrangements with an agency of the United States or this state for temporary housing or residential housing units to be occupied by disaster victims and make such units available to any political subdivision or persons; (12) To assist political subdivisions, local organizations for emergency services and nonprofit corporations in acquiring sites necessary for temporary housing or residential housing for disaster victims and in otherwise preparing the sites to receive and use temporary housing or residential housing units, including payment of transportation charges, by advancing or lending funds available to the board from the recovery fund; (13) To make grants and provide technical services to assist in the purchase or other acquisition, planning, processing, design, construction, or rehabilitation, improvement or operation of temporary housing or residential housing: Provided, That no such grant or other financial assistance shall be provided except upon a written finding by the board that such assistance and the manner in which it will be provided constitute a disaster recovery activity; (14) To make or participate in the making of insured or uninsured construction and permanent loans or grants for temporary housing or residential housing, community facilities and essential business activities: Provided, That no such loan or grant shall be made except upon a written finding by the board that the loan or grant and the manner in which it will be provided constitute a disaster recovery activity and that the loan or grant is not otherwise available, wholly or in part, from a private or public lender upon reasonably equivalent terms and conditions; and (15) Do all acts necessary and proper to carry out the powers granted to the board under this article.
§15-5-5. General powers of the Governor. The Governor shall have general direction and control of the Office of Emergency Services and shall be responsible for the carrying out of the provisions of this article and, in the event of disaster beyond local control, may assume direct operational control over all or any part of the emergency services functions within this state. In performing his duties under this article, the Governor is authorized to cooperate with the federal government, other states and private agencies in all matters pertaining to the provisions of emergency services for this state and the nation. In performing his duties under this article to effect its policy and purpose, the Governor is further authorized and empowered: (1) To make, amend and rescind the necessary orders, rules and regulations to carry out the provisions of this article within the limits of the authority conferred upon him herein, with due consideration of the plans of the federal government. (2) To prepare and implement a comprehensive plan and program for the provision of emergency services in this state, such plan and program to be integrated into and coordinated with comparable plans of the federal government and of other states to the fullest possible extent, and to coordinate the preparation of such plans and programs by the political subdivisions of this state, such plans to be integrated into and coordinated with the state plan and program to the fullest possible extent. (3) In accordance with such state plan and program, to procure supplies and equipment, to institute training and public information programs, to take all other preparatory steps including the partial or full mobilization of emergency services organizations in advance of actual disaster and to insure the furnishing of adequately trained and equipped emergency services personnel in time of need. (4) To make such studies and surveys of industries, resources and facilities in this state as may be necessary to ascertain the capabilities of the state for providing emergency services and to plan for the most efficient emergency use thereof. (5) On behalf of the state, to enter into mutual aid arrangements with other states and to coordinate mutual aid plans between political subdivisions of this state. (6) To delegate the administrative authority vested in him under this article, to provide for the delegation or transfer or both of the authority vested in the director under the provisions of this article, to any other person as the Governor in his discretion may direct, and to provide for the subdelegation of any such authority. (7) To appoint a disaster recovery team composed of departmental heads, members of the executive, political subdivision representatives, technicians, members of the public and other representatives, the composition of which team shall reflect the character and extent of the disaster itself. (8) To appoint, in cooperation with local authorities, metropolitan area directors when practicable. (9) To cooperate with the president and the heads of the Armed Forces, the civil defense agency of the United States and other appropriate federal officers and agencies and with the officers and agencies of other states in matters pertaining to the civil defense of the state and nation, including the direction and control of (a) blackouts and practice blackouts, air raid drills, mobilization of emergency services and civil defense forces and other tests and exercises; (b) warnings and signals for drills or attacks and the mechanical devices to be used in connection therewith; (c) the effective screening or extinguishing of all lights and lighting devices and appliances; (d) shutting off water mains, gas mains, electric power connections and the suspension of all other utility services; (e) the conduct of civilians and the movement and cessation of movement of pedestrians and vehicular traffic during, prior and subsequent to drills or attack; (f) public meetings or gatherings; and (g) the evacuation and reception of the civilian population.
§15-5-6. Emergency powers of Governor. (a) The provisions of this section are operative only during the existence of a state of emergency or state of preparedness. The existence of a state of emergency or state of preparedness may be proclaimed by the Governor or by concurrent resolution of the Legislature if the Governor in the proclamation, or the Legislature in the resolution, finds that an attack upon the United States has occurred or is anticipated in the immediate future, or that a natural or man-made disaster of major proportions has actually occurred or is imminent within the state, or that an emergency exists or may be imminent due to a large-scale threat beyond local control, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section. (b) Any state of emergency or state of preparedness, whether proclaimed by the Governor or by the Legislature, terminates upon the proclamation of the termination by the Governor, or the passage by the Legislature of a concurrent resolution terminating the state of emergency or state of preparedness: Provided, That in no case shall a state of preparedness last longer than thirty days. (c) So long as a state of emergency or state of preparedness exists, the Governor has and may exercise the following additional emergency powers: (1) To enforce all laws and rules relating to the provision of emergency services and to assume direct operational control of any or all emergency service forces and helpers in the state; (2) To sell, lend, lease, give, transfer or deliver materials or perform functions relating to emergency services on terms and conditions he or she prescribes and without regard to the limitations of any existing law and to account to the State Treasurer for any funds received for the property; (3) To procure materials and facilities for emergency services by purchase, condemnation under the provisions of chapter fifty-four of this code or seizure pending institution of condemnation proceedings within thirty days from the seizing thereof and to construct, lease, transport, store, maintain, renovate or distribute the materials and facilities. Compensation for property so procured shall be made in the manner provided in chapter fifty-four of this code; (4) To obtain the services of necessary personnel, required during the emergency, and to compensate them for their services from his or her contingent funds or other funds available to him or her; (5) To provide and compel the evacuation of all or part of the population from any stricken or threatened area within the state and to take steps that are necessary for the receipt and care of the evacuees; (6) To control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein; (7) To suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules of any state agency, if strict compliance therewith would in any way prevent, hinder or delay necessary action in coping with the emergency; (8) To use available resources of the state and of its political subdivisions that are reasonably necessary to cope with the emergency; (9) To suspend or limit the sale, dispensing or transportation of alcoholic beverages, explosives and combustibles; (10) To make provision for the availability and use of temporary emergency housing; and (11) To perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population. (d) The declaration of a state of preparedness has the same effect as a declaration of a state of emergency for the purposes of the Emergency Management Assistance Compact established in section twenty-two of this article and the Statewide Mutual Aid Systems set forth in section twenty-eight of this article. (e) The powers granted under this section do not authorize any action that would violate the prohibitions of section nineteen-a of this article.
§15-5-6a. Temporary suspension of nutrition standards in public schools. This section is operative only during the existence of a state of emergency or state of preparedness proclaimed by the Governor or by concurrent resolution of the Legislature. During a state of emergency or state of preparedness, the Governor or the Legislature may, to facilitate uninterrupted days of instruction, temporarily suspend legislative rules establishing nutrition standards for foods and beverages distributed to students in public schools during the school day: Provided, That safe alternative foods and beverages are available for distribution to students: Provided, however, That the temporary suspension of nutrition standards permitted by this section is limited to the geographic area affected by the state of emergency or state of preparedness and a report of any such action be made to the Joint Committee on Government and Finance.
§15-5-7. Mobile support units. The Governor or his duly authorized representative may create and establish such number of mobile support units as are necessary to reinforce emergency service organizations in stricken areas and with due consideration of the plans of the federal government and of other states. He shall appoint a commander for each such unit who shall have primary responsibility for the organization, administration and operation of such unit. A mobile support unit shall be called to duty upon order of the Governor and may function in any part of the state or, upon the conditions specified in this section, in other states. Personnel of mobile support units while on duty, whether within or without the state, shall: (1) If they are employees of the state, have the powers, duties, rights, privileges and immunities and receive the compensation incidental to their employment; (2) if they are employees of a political subdivision of the state and whether serving within or without such political subdivision, have the powers, duties, rights, privileges and immunities and receive the compensation incidental to their employment; and (3) if they are not employees of the state or a political subdivision thereof, be entitled to compensation by the state at the same rate as is paid members of circuit court juries and to the same rights and immunities as are provided by law for the employees of this state. All personnel of mobile support units shall, while on duty, be subject to the operational control of the authority in charge of emergency service activities in the area in which they are serving and shall be reimbursed for all necessary travel and subsistence expenses actually incurred. The state shall reimburse a political subdivision for the compensation paid and necessary travel, subsistence and maintenance expenses actually incurred of employees of such political subdivision while serving as members of a mobile support unit and for all payments for death, disability or injury of such employees incurred in the course of duty and for all losses of or damage to supplies and equipment of such political subdivision resulting from the operation of such mobile support unit.
§15-5-8. Local organization for emergency services. Each political subdivision of this state is hereby authorized and directed to establish a local organization for emergency services in accordance with the state plan and program for the provision of emergency services. Such political subdivision may confer or authorize the conferring upon members of the auxiliary police the powers of peace officers, subject to such restrictions as it may impose. Each local organization for emergency services shall consist of a director and a local emergency services council and such other members as may be required. The director shall be appointed by the executive officer or governing body of the political subdivision to serve at the will and pleasure of the executive officer or governing body and such political subdivisions are authorized to provide adequate compensation for him The local council shall consist of five members, appointed by the executive officer or governing body of the political subdivision: Provided, That not more than three members thereof shall be members of the same political party. Council members shall serve a term of years staggered to provide continuity of service in accordance with local needs, without compensation, but shall be reimbursed for the reasonable and necessary expenses actually incurred in the performance of their duties. The executive officer or governing body of the political subdivision shall have general direction and control of the local emergency services organization and shall be responsible for carrying out the provisions of this article. The director, subject to the direction and control of such executive officer or governing body, shall be executive head of the local emergency services organization and shall be directly responsible to the executive officer or governing body for the organization, administration and operation of the local emergency services program. The local council shall advise the director on all matters pertaining to emergency services. Each local organization shall perform emergency service functions within the territorial limits of the political subdivisions within which it is organized and, in addition, conduct such functions outside of such territorial limits as may be required pursuant to the provisions of sections nine and ten of this article. In carrying out the provisions of this article each political subdivision in which any disaster as described in section one of this article occurs shall have the power to enter into contracts and incur obligations necessary to combat such disaster, protect the health and safety of persons and property and provide emergency assistance to the victims of such disaster. Each political subdivision is authorized to exercise its powers under this section in light of the exigencies of extreme emergency situations without regard to time-consuming procedures and formalities prescribed by law (excepting mandatory Constitutional requirements) pertaining to the performance of public work, entry into contracts, incurring of obligations, employment of temporary workers, rental of equipment, purchase of supplies and materials, levying of taxes and appropriation and expenditure of public funds.
§15-5-9. Mutual aid agreements. The director of each local organization for emergency services may, in collaborating with other public and private agencies within this state, develop or cause to be developed mutual aid agreements for reciprocal aid and assistance in case of disaster too great to be dealt with unassisted. Such agreements shall be made in conformity with the state plan and program for emergency services and, in time of emergency, it shall be the duty of each local organization to render assistance in accordance therewith. The director of each local organization may, subject to the approval of the Governor, enter into mutual aid agreements with emergency service and civil defense agencies or organizations in other states for reciprocal aid and assistance in case of disaster too great to be dealt with unassisted.
§15-5-10. Regional organizations for emergency services. Regional organizations for emergency services may be established in the discretion of the Governor for any combination of political subdivisions. Each such organization shall be directed by the council which shall consist of the local directors, hereinbefore provided for in section eight of this article, of emergency services of the political subdivisions included in the region for which the organization is established. The local directors of emergency services shall designate the chairman, who may be one of the local directors, a private citizen or a local official, and may appoint committees representing different groups of interested citizens to assist them in the discharge of their duties. Members of such committees shall not be entitled to compensation for their services. The regional organizations and their members shall, in accordance with the state plan and program for emergency services, engage in such activities and perform such functions and duties as will further the provision of emergency services for the region and state. The emergency service organizations shall coordinate their activities with those of the regional planning and development councils in this state, and each local political subdivision included in the region shall pay its proportionate share of the ordinary expenses of such activities. Any such organization may, within the limits of the funds made available for the purpose by the local political subdivisions included in the region or by the state, employ necessary personnel and fix their compensation, if any. Any such regional organization may be dissolved, reorganized or rearranged by the Governor whenever in his discretion such action is necessary.
§15-5-11. Immunity and exemption; "duly qualified emergency service worker" defined. (a) All functions hereunder and all other activities relating to emergency services are hereby declared to be governmental functions. Neither the state nor any political subdivision nor any agency of the state or political subdivision nor, except in cases of willful misconduct, any duly qualified emergency service worker complying with or reasonably attempting to comply with this article or any order, rule, regulation or ordinance promulgated pursuant to this article, shall be liable for the death of or injury to any person or for damage to any property as a result of such activity. This section does not affect the right of any person to receive benefits or compensation to which he or she would otherwise be entitled under this article, chapter twenty-three of this code, any Act of Congress or any other law. (b) Any requirement for a license to practice any professional, mechanical or other skill does not apply to an authorized emergency service worker who shall, in the course of performing his or her duties, practice such skill during an emergency. (c) As used in this section, "duly qualified emergency service worker" means: (1) Any duly qualified full or part-time paid, volunteer or auxiliary employee of this state, or any other state, territory, possession or the District of Columbia, of the federal government, of any neighboring country or political subdivision thereof or of any agency or organization performing emergency services in this state subject to the order or control of or pursuant to the request of the state or any political subdivision thereof. (2) Duly qualified instructors and properly supervised students in recognized educational programs where emergency services are taught. A recognized educational program shall include any program in an educational institution existing under the laws of this state and such other educational programs as shall be established by the Division of Homeland Security and Emergency Management or otherwise under this article. (3) A member of any duly qualified mine rescue team designated by a mine operator pursuant to the provisions of section thirty-five, article one, chapter twenty-two-a of this code who is performing or engaging in emergency rescue services. (d) A duly qualified emergency service worker performing his or her duty in this state pursuant to any lawful agreement, compact or arrangement for mutual aid and assistance to which the state or a political subdivision is a party shall possess the same powers, duties, immunities and privileges he or she would possess if performing the same duties in his or her own state, province or political subdivision thereof.
§15-5-12. Liability to sheltered persons. Any person owning or controlling real estate or other premises who voluntarily and without compensation grants a license or privilege or otherwise permits the designation or use of the whole or any part of such real estate or premises for the purpose of sheltering persons during an actual, impending, mock or practice emergency shall, together with his successors in interest, if any, not be civilly liable for negligently causing the death of or injury to any sheltered person on or about such real estate or premises or for loss of or damage to the property of any such sheltered person.
§15-5-13. Appropriations; acceptance of services, gifts, grants and loans. (a) Each political subdivision shall have the power to make appropriations in the manner provided by law for making appropriations for the ordinary expenses of such political subdivision for the payment of expenses of its local organization for emergency services or of its proportionate share of expenses of a regional organization for emergency services, or both. (b) Whenever the federal government or any agency or officer thereof shall offer to any authority, corporation, partnership or other entity, public or private or the state, or through the state to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services, the state, after consultation and in coordination with the Secretary and acting through the Governor, or a political subdivision after consultation and in coordination with the Secretary and acting with the consent of the Governor and through its executive officer or governing body, may accept the offer. Upon acceptance, the Governor of the state or executive officer or governing body of the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive services, equipment, supplies, materials or funds on behalf of the state or the political subdivision and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer. (c) Whenever any person, firm or corporation shall offer to the state or to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services, the state, after consultation and in coordination with the Secretary and acting through the Governor, or the political subdivision after consultation and in coordination with the Secretary and acting through its executive officer or governing body, may accept the offer. Upon acceptance, the Governor of the state or executive officer or governing body of the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive services, equipment, supplies, materials or funds on behalf of the state or the political subdivision and subject to the terms of the offer. (d) The Governor may require any agency, authority, corporation, partnership or other entity to furnish a report, in both written and electronic form, detailing the source and receipt of all services, equipment, supplies, materials or funds for purposes relating to homeland security or emergency services as a condition of receiving these from the state. Within ten days of the receipt of any reports required under this subsection, the Governor shall furnish copies thereof to the Legislature.
§15-5-14. Political activity of emergency service organizations. No organization for emergency services established under the authority of this article shall participate in any form of political activity, nor shall it be employed directly or indirectly for political purposes.
§15-5-15. Emergency service personnel. (a) No person may be employed or associated in any capacity in homeland security or any emergency service organization established under this article who has been convicted of a felony or who advocates or has advocated a change by force or violence in the Constitutional form of the government of the United States or this state or the overthrow of any government in the United States by force or violence or who has been convicted of or is under indictment or information charging any subversive act against the United States. (b) Each person who is appointed to serve in an organization for homeland security or emergency services shall undergo a background check and shall, before entering upon his or her duties, take an oath, in writing, before a person authorized to administer oaths in this state, which shall be substantially as follows: "I,_________________, do solemnly swear or affirm that I will support and defend the Constitution of the United States and the Constitution of West Virginia against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or evasion; that I am not a convicted felon; and that I will faithfully and competently discharge the duties upon which I am about to enter. "I do further swear or affirm that I do not advocate, nor am I a member of any political party or organization that advocates, the overthrow of the government of the United States or this state by force or violence; while I am a member of the (name of organization) I will not advocate or become a member of any political party or organization that advocates the overthrow of the government of the United States or this state by force or violence."
§15-5-15a. Paid leave for disaster service volunteers. Any state employee who is a certified disaster service volunteer of the American Red Cross may be granted leave from his or her state employment with pay, for not more than fifteen work days in each year, to participate in specialized disaster relief services for the American Red Cross. Leave shall be granted under this section upon the request of the American Red Cross for the services of that employee and only upon the approval of that employee's immediate supervisor. Leave shall be granted without loss of pay, annual leave, sick leave, earned overtime compensation, seniority or compensatory time. The state shall compensate an employee granted leave under this section at the employee's regular rate of pay for those regular work hours during which the employee is absent from his or her state employment. Any supervisor granting leave to an employee for purposes of participating in specialized disaster relief shall make a report to the Governor which includes the name of the employee and the cost of salary and benefits of that employee during the period of the leave. The Governor shall keep a record of the total cost of the salary and benefits of employees who have been granted leave and in no event shall the total cost for all state agencies exceed $100,000: Provided, That upon approval of the Governor and repayment of the cost to the employing agency, from the civil contingent fund, leave may be granted in an excess of a total cost of $100,000 if a state of emergency has been proclaimed pursuant to section six of this article.
§15-5-16. Utilization of existing services and facilities. In carrying out the provisions of this article, the Governor, the chairmen of the regional councils and the executive officers or governing bodies of the political subdivisions of the state are directed to utilize the services, equipment, supplies and facilities of existing departments, offices and agencies of the state and of the political subdivisions to the maximum extent practicable, and the officers and personnel of all such departments, offices and agencies are directed to cooperate with and extend such services and facilities to the Governor and to emergency service organizations of the state upon request.
§15-5-17. Enforcement. It shall be the duty of every organization for emergency services established pursuant to this article and of the officers thereof to execute and enforce such orders, rules and regulations as may be made by the Governor under this article. Each such organization shall have at its office available for public inspection all such orders, rules and regulations of the Governor.
§15-5-18. Arrest by peace officer without warrant. A peace officer, when in uniform or displaying a badge or other insignia of authority, may arrest without a warrant any person violating or attempting to violate in such officer's presence any order, rule or regulation made pursuant to this article. This authority shall be limited to arrest for violations of those orders, rules and regulations which affect the public generally.
§15-5-19. Unorganized militia. The unorganized militia shall, at the call of the Governor, be available for duty with the emergency service forces of this state. For purposes of this article, the unorganized militia shall consist of all able-bodied men and women between the ages of sixteen and fifty.
§15-5-19a. Possession of firearms during a declared state of emergency. (a) No person acting on behalf or under the authority of the state or a political subdivision of the state may do any of the following during any federal or state declared state of emergency: (1) Prohibit or restrict the otherwise lawful possession, use, carrying, transfer, transportation, storage or display of a firearm or ammunition; (2) Seize, confiscate, or authorize the seizure or confiscation of any otherwise lawfully-possessed firearm or ammunition unless: (A) The person acting on behalf of or under the authority of the state or political subdivision is: (i) Defending himself or another from an assault; or, (ii) Arresting a person in actual possession of a firearm or ammunition for a violation of law; or, (B) The firearm or ammunition is being seized or confiscated as evidence of a crime; or, (3) Require registration of any firearm or ammunition. (b) The prohibitions of subsection (a)(1) do not prohibit the state or an authorized state or local authority from ordering and enforcing an evacuation or general closure of businesses in the affected area during a declared state of emergency. (c) Any individual aggrieved by a violation of this section may seek relief in an action at law or in equity for redress against any person who subjects such individual, or causes such individual to be subjected, to an action prohibited by this section. (d) In addition to any other remedy at law or in equity, an individual aggrieved by the seizure or confiscation of a firearm or ammunition in violation of this section may bring an action for the return of such firearm or ammunition in the circuit court of the county in which that individual resides or in which such firearm or ammunition is located. (e) In any action or proceeding to enforce this section, the court shall award a prevailing plaintiff costs and reasonable attorney fees.
§15-5-19b. Criminal penalties for using automated telephone calls to disseminate false, misleading or deceptive information regarding matters effecting or effected by a proclaimed state of emergency or state of preparedness. (a) Any person or entity who, during a state of emergency or state of preparedness declared pursuant to the provisions of section six of this article: (1) Knowingly and willfully disseminates false, misleading or deceptive information regarding matters effecting or effected by the declaration; and (2) by means of an automated telephone call or calling device, including, but not limited to, technology designed to disseminate a previously recorded message shall be guilty of a misdemeanor and, upon conviction thereof, be confined in jail for not more than one year or fined not more than $5,000, or both. (b) For purposes of this section each call made shall constitute a separate violation of this section.
§15-5-20. Disaster prevention. (a) In addition to disaster prevention measures as included in the state, local, regional and interjurisdictional disaster plans, the Governor shall consider on a continuing basis steps that could be taken to prevent or reduce the harmful consequences of disasters. At his or her direction, and pursuant to any other authority and competence they have, state agencies, including, but not limited to, those charged with responsibilities in connection with floodplain management, stream encroachment and flow regulation, weather modification, fire prevention and control, air quality, public works, land use and land-use planning and construction standards, shall make studies of disaster prevention-related matters. The Governor, from time to time, shall make such recommendation to the Legislature, political subdivisions and other appropriate public and private entities as may facilitate measures for prevention or reduction of the harmful consequences of disasters. (b) At the request of and in conjunction with the Office of Emergency Services, the divisions of energy, natural resources and highways and any state department insured by the Board of Risk and Insurance Management shall keep land use and construction of structures and other facilities under continuing study and identify areas which are particularly susceptible to severe land shifting, subsidence, flooding or other catastrophic occurrences. Such studies shall concentrate on means of reducing or avoiding the dangers caused by such occurrences and the consequences thereof.
§15-5-20a. Floodplain manager training. (a) Community participation in the National Flood Insurance Program is important to manage and mitigate the special flood hazard areas in West Virginia. Therefore, all state, county, municipality and local floodplain managers should be adequately trained in floodplain management. (b) Commencing July 1, 2012, each floodplain manager in the state is required to complete six hours of training in floodplain management annually to maintain good standing with the West Virginia Division of Homeland Security. (c) A governmental unit that has a floodplain manager who fails to obtain the required training shall suspend the floodplain manager from his or her floodplain management responsibilities until the training requirement is met. (d) A governmental unit that has a floodplain manager who fails to obtain the required training shall transfer its floodplain management responsibilities and all associated fees to a governmental unit that has a floodplain manager in good standing.
§15-5-21. Communications. The Office of Emergency Services shall ascertain what means exist for rapid and efficient communication in times of disaster. The office shall consider the desirability of supplementing such communication resources or of integrating them into a comprehensive state or federal-state telecommunications or other communications system or network. In studying the character and feasibility of any system or its several parts, the office shall evaluate the possibility of multipurpose use thereof for various state, regional and local governmental purposes. The office shall make recommendations to the Governor as appropriate.
§15-5-22. Emergency Management Assistance Compact. The "Emergency Management Assistance Compact" is hereby approved, ratified, adopted, enacted into law and entered into by the State of West Virginia with all other jurisdictions legally joining therein in accordance with its terms, in a form substantially as follows: EMERGENCY MANAGEMENT ASSISTANCE COMPACT ARTICLE I - PURPOSE AND AUTHORITIES This compact is made and entered into by and between the participating member states which enact this compact, hereinafter called party states. For the purposes of this agreement, the term "states" is taken to mean the several states, the Commonwealth of Puerto Rico, the District of Columbia, and all United States territorial possessions. The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency or disaster that is duly declared by the Governor of the affected state(s), whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency or enemy attack. This compact shall also provide for mutual cooperation in emergency-related exercises, testing or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisions of party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states' National Guard forces, either in accordance with the National Guard Mutual Assistance Compact or by mutual agreement between states. ARTICLE II - GENERAL IMPLEMENTATION Each party state entering into this compact recognizes many emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential in managing these and other emergencies under this compact. Each state further recognizes that there will be emergencies which require immediate access and present procedures to apply outside resources to make a prompt and effective response to such an emergency. This is because few, if any, individual states have all the resources they may need in all types of emergencies or the capability of delivering resources to areas where emergencies exist. The prompt, full, and effective utilization of resources of the participating states, including any resources on hand or available from the federal government or any other source, that are essential to the safety, care and welfare of the people in the event of any emergency or disaster declared by a party state, shall be the underlying principle on which all articles of this compact shall be understood. On behalf of the Governor of each state participating in the compact, the legally designated state official who is assigned responsibility for emergency management will be responsible for formulation of the appropriate interstate mutual aid plans and procedures necessary to implement this compact. ARTICLE III - PARTY STATE RESPONSIBILITIES (a) It shall be the responsibility of each party state to formulate procedural plans and programs for interstate cooperation in the performance of the responsibilities listed in this article. In formulating such plans, and in carrying them out, the party states, insofar as practical, shall: (1) Review individual state hazards analyses and, to the extent reasonably possible, determine all those potential emergencies the party states might jointly suffer, whether due to natural disaster, technological hazard, man-made disaster, emergency aspects of resource shortages, civil disorders, insurgency or enemy attack. (2) Review party states' individual emergency plans and develop a plan which will determine the mechanism for the interstate management and provision of assistance concerning any potential emergency. (3) Develop interstate procedures to fill any identified gaps and to resolve any identified inconsistencies or overlaps in existing or developed plans. (4) Assist in warning communities adjacent to or crossing the state boundaries. (5) Protect and assure uninterrupted delivery of services, medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services and resources, both human and material. (6) Inventory and set procedures for the interstate loan and delivery of human and material resources, together with procedures for reimbursement or forgiveness. (7) Provide, to the extent authorized by law, for temporary suspension of any statutes or ordinances that restrict the implementation of the above responsibilities. (b) The authorized representative of a party state may request assistance of another party state by contacting the authorized representative of that state. The provisions of this agreement shall only apply to requests for assistance made by and to authorized representatives. Requests may be verbal or in writing. If verbal, the request shall be confirmed in writing within thirty days of the verbal request. Requests shall provide the following information: (1) A description of the emergency service function for which assistance is needed, such as but not limited to fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue. (2) The amount and type of personnel, equipment, materials and supplies needed, and a reasonable estimate of the length of time they will be needed. (3) The specific place and time for staging of the assisting party's response and a point of contact at that location. (c) There shall be frequent consultation between state officials who have assigned emergency management responsibilities and other appropriate representatives of the party states with affected jurisdictions and the United States government, with free exchange of information, plans and resource records relating to emergency capabilities. ARTICLE IV - LIMITATIONS Any party state requested to render mutual aid or conduct exercises and training for mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms hereof: Provided, That it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for such state. Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers (except that of arrest unless specifically authorized by the receiving state), duties, rights, and privileges as are afforded forces of the state in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the emergency services authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state of emergency or disaster by the Governor of the party state that is to receive assistance or commencement of exercises or training for mutual aid and shall continue so long as the exercises or training for mutual aid are in progress, the state of emergency or disaster remains in effect or loaned resources remain in the receiving state(s), whichever is longer. ARTICLE V - LICENSES AND PERMITS Whenever any person holds a license, certificate or other permit issued by any state party to the compact evidencing the meeting of qualifications for professional, mechanical or other skills, and when such assistance is requested by the receiving party state, such person shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the Governor of the requesting state may prescribe by executive order or otherwise. ARTICLE VI - LIABILITY Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence or recklessness. ARTICLE VII - SUPPLEMENTARY AGREEMENTS Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party hereto, this instrument contains elements of a broad base common to all states, and nothing herein contained shall preclude any state from entering into supplementary agreements with another state or affect any other agreements already in force between states. Supplementary agreements may comprehend, but shall not be limited to, provisions for evacuation and reception of injured and other persons and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, and equipment and supplies. ARTICLE VIII - COMPENSATION Each party state shall provide for the payment of compensation and death benefits to injured members of the emergency forces of that state and representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within their own state. ARTICLE IX - REIMBURSEMENT Any party state rendering aid in another state pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to or expense incurred in the operation of any equipment and the provision of any service in answering a request for aid and for the costs incurred in connection with such requests: Provided, That any aiding party state may assume, in whole or in part, such loss, damage, expense or other cost, or may loan such equipment or donate such services to the receiving party state without charge or cost: Provided, however, That any two or more party states may enter into supplementary agreements establishing a different allocation of costs among those states. Article VIII expenses shall not be reimbursable under this provision. ARTICLE X - EVACUATION Plans for the orderly evacuation and interstate reception of portions of the civilian population as the result of any emergency or disaster of sufficient proportions to so warrant, shall be worked out and maintained between the party states and the emergency management/services directors of the various jurisdictions where any type of incident requiring evacuations might occur. Such plans shall be put into effect by request of the state from which evacuees come and shall include the manner of transporting such evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of such evacuees to other areas or the bringing in of additional materials, supplies and all other relevant factors. Such plans shall provide that the party state receiving evacuees and the party state from which the evacuees come shall mutually agree as to reimbursement of out-of-pocket expenses incurred in receiving and caring for such evacuees, for expenditures for transportation, food, clothing, medicines and medical care, and like items. Such expenditures shall be reimbursed as agreed by the party state from which the evacuees come. After the termination of the emergency or disaster, the party state from which the evacuees come shall assume the responsibility for the ultimate support of repatriation of such evacuees. ARTICLE XI - IMPLEMENTATION (a) This compact shall become operative immediately upon its enactment into law by any two states; thereafter, this compact shall become effective as to any other state upon its enactment by such state. (b) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until thirty days after the Governor of the withdrawing state has given notice in writing of such withdrawal to the Governors of all other party states. Such action shall not relieve the withdrawing state from obligations assumed hereunder prior to the effective date of withdrawal. (c) Duly authenticated copies of this compact and of such supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states and with the federal emergency management agency and other appropriate agencies of the United States government. ARTICLE XII - VALIDITY This compact shall be construed to effectuate the purposes stated in Article I hereof. If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the Constitutionality of the remainder of this compact and the applicability thereof to other persons and circumstances shall not be affected thereby. ARTICLE XIII - ADDITIONAL PROVISIONS Nothing in this compact shall authorize or permit the use of military force by the National Guard of a state at any place outside that state in any emergency for which the President is authorized by law to call into federal service the militia, or for any purpose for which the use of the Army or the Air Force would in the absence of express statutory authorization be prohibited under Section 1385 of Title 18, United States Code. ARTICLE XIV - REPORTING TO LEGISLATURE The director of the Office of Emergency Services shall, on or before January 1, 1997, provide to the Joint Committee on Government and Finance copies of all mutual aid plans and procedures promulgated, developed or entered into after the effective date of this section. The director shall annually thereafter provide the Joint Committee on Government and Finance with copies of all new or amended mutual aid plans and procedures on or before January 1, of each year.
§15-5-23. Severability; conflicts. (a) If any section, subsection, subdivision, provision, clause or phrase of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, subdivisions, provisions, clauses or phrases or applications of the article, and to this end each and every section, subsection, subdivision, provision, clause and phrase of this article is declared to be severable. The Legislature hereby declares that it would have enacted the remaining sections, subsections, provisions, clauses and phrases of this article even if it had known that any section, subsection, subdivision, provision, clause and phrase thereof would be declared to be unconstitutional or invalid, and that it would have enacted this article even if it had known that the application thereof to any person or circumstance would be held to be unconstitutional or invalid. (b) The provisions of subsection (a) of this section shall be fully applicable to all future amendments or additions to this article, with like effect as if the provisions of said subsection (a) were set forth in extenso in every such amendment or addition and were reenacted as a part thereof.
§15-5-24. Disaster recovery trust fund; use of funds of authority. (a) There is hereby created a special trust fund which shall be designated and known as the "West Virginia Disaster Recovery Trust Fund" to be administered by the West Virginia disaster recovery board. The recovery fund shall consist of (i) any appropriations, grants, gifts, contributions or revenues received by the recovery fund from any source, public or private, and (ii) all income earned on moneys, properties and assets held in the recovery fund. When any funds are received by the board from any source, they shall be paid into the recovery fund, and shall be disbursed and otherwise managed in the manner set forth in this article. The recovery fund shall be treated by the Auditor and treasurer as a special revenue fund and not as part of the general revenues of the state. (b) All moneys, properties and assets acquired by the West Virginia disaster recovery board shall be held by it in trust for the purposes of carrying out its powers and duties, and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys, properties and assets shall at no time be commingled with other public funds. Disbursements from the recovery fund shall be made only upon the written requisition of the chairman accompanied by a certified resolution of the board. If no need exists for immediate use or disbursement, moneys, properties and assets in the recovery fund shall be invested or reinvested by the board as provided in this article.
§15-5-25. Prohibition on funds inuring to the benefit of or being distributable to members, officers or private persons. No portion of the recovery fund shall inure to the benefit of or be distributable to members of the West Virginia disaster recovery board or other private persons except that the board shall be authorized and empowered to make loans or grants and exercise its other powers as specified in this article in furtherance of its purpose: Provided, That no such loans or grants shall be made to and no property shall be purchased or leased from, or sold, leased or otherwise disposed of to, any member or officer of the board except as provided under subsection (d), section five, article two, chapter six-b of this code.
§15-5-26. Tax exemption. The board shall not be required to pay any taxes and assessments to the state or any political subdivision of the state upon any of its moneys, properties or assets or upon its obligations or other evidences of indebtedness pursuant to the provisions of this article, or upon any moneys, funds, revenues or other income held or received by the West Virginia disaster recovery board.
§15-5-27. Annual report. The board shall prepare and transmit to the Legislature annually as of June 30 a report of its disaster recovery activities. The report shall include the number of requests for distributions, the number of distributions made and the amount of each distribution; a listing by source and amount of moneys, properties and assets that have been contributed to the recovery fund since June 30 of the preceding year; the outstanding balance of the recovery fund; and an itemized list of any administrative costs incurred.
§15-5-28. Statewide mutual aid system. (a) The Legislature hereby finds that emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential for the protection of lives and property and for the best use of available assets, both public and private. The purpose of this section is to create a system of intrastate mutual aid between participating political subdivisions in the state. The system shall provide for mutual assistance among the participating political subdivisions in the prevention of, response to and recovery from any disaster that results in a formal state of emergency or state of preparedness in a participating political subdivision, subject to that participating political subdivision's criteria for declaration. The system shall provide for mutual cooperation among the participating subdivisions in conducting disaster-related exercises, testing or other training activities outside actual declared emergency periods. This section provides no immunity, rights or privileges for any individual responding to a state of emergency or state of preparedness that is not requested or authorized to respond by a participating political subdivision. Participating political subdivisions will be ensured, to the fullest extent possible, eligibility for state and federal disaster funding. (b) Upon the enactment of this legislation, all political subdivisions within the state are members of the statewide mutual aid system: Provided, That a political subdivision within the state may elect not to participate or to withdraw from the system upon the enactment of an appropriate resolution by its governing body declaring that it elects not to participate in the statewide mutual aid system. A copy of any such resolution shall be provided to the Division of Homeland Security and Emergency Management. (c) This section does not preclude participating political subdivisions from entering into supplementary agreements with another political subdivision and does not affect any other agreement to which a political subdivision may currently be a party to, or decide to be a party to. (d) "Emergency responder", as used in this article, shall mean anyone with special skills, qualifications, training, knowledge and experience in the public or private sectors that would be beneficial to a participating political subdivision in response to a locally declared emergency as defined in any applicable law or ordinance or authorized drill or exercises; and who is requested and authorized to respond. Under this definition, an emergency responder may be required to possess a license, certificate, permit or other official recognition for his or her expertise in a particular field or area of knowledge. An emergency responder could include, but is in no way limited to, the following: Law-enforcement officers, firefighters, emergency medical services personnel, physicians, nurses, other public health personnel, emergency management personnel, public works personnel, local emergency debris removal teams, those persons with specialized equipment operations skills or training or any other skills needed to provide aid in a declared emergency. (e) It shall be the responsibility of each participating political subdivision with jurisdiction over and responsibility for emergency management within that certain subdivision to do all of the following: (1) Identify potential hazards that could affect the participant using an identification system common to all participating jurisdictions. (2) Conduct joint planning, intelligence sharing and threat assessment development with contiguous participating political subdivisions and conduct joint training at least biennially. (3) Identify and inventory the current services, equipment, supplies, personnel and other resources related to planning, prevention, mitigation, response and recovery activities of the participating political subdivision. (4) Adopt and implement the National Incident Management System approved by the State of West Virginia. (f) A participating political subdivision may request assistance of other participating political subdivisions in preventing, mitigating, responding to and recovering from disasters that result in locally declared emergencies or in concert with authorized drills or exercises as allowed under this section. Requests for assistance shall be made to the Division of Homeland Security and Emergency Management through the designated county emergency management director by the chief executive officer of a participating political subdivision, or his or her designee, for response. Requests may be verbal or in writing. Verbal requests will be followed up with a written request as soon as is practical or such number of days as the state, in its discretion, may dictate. (g) The obligation of a participating political subdivision to provide assistance in the prevention of, response to and recovery from a locally declared emergency or in authorized drills or exercises is subject to the following conditions: (1) A participating political subdivision requesting assistance must have either declared a state of emergency in the manner outlined in this section or authorized drills and exercises; (2) A responding participating political subdivision may withhold resources to the extent necessary to provide reasonable protection and services for its own jurisdiction; (3) Emergency response personnel of a responding participating political subdivision shall continue under the command and control of their responding jurisdiction to include medical protocols, standard operating procedures and other protocols, but shall be under the operational control of the appropriate officials within the National Incident Management System of the participating political subdivision receiving the assistance; and (4) Assets and equipment of a responding participating political subdivision shall continue under the control of the responding jurisdiction, but shall be under the operational control of the appropriate officials within the National Incident Management System of the participating political subdivision receiving the assistance. (h) If a person or entity holds a license, certificate or other permit issued by a participating political subdivision or the state evidencing qualification in a professional, mechanical or other skill and the assistance of that person or entity is requested by a participating political subdivision, the person or entity shall be deemed to be licensed, certified or permitted in the political subdivision requesting assistance for the duration of the declared emergency or authorized drills or exercises and subject to any limitations and conditions the chief executive of the participating political subdivision receiving the assistance may prescribe by executive order or otherwise. (i) (1) Any requesting political subdivision shall reimburse the participating political subdivision rendering aid under this system provided the request for aid is authorized by the Division of Homeland Security and Emergency Management. A participating political subdivision providing assistance may determine to donate assets of any kind to a receiving participating political subdivision. (2) Should a dispute arise between parties to the system regarding reimbursement, involved parties will make every effort to resolve the dispute within thirty days of written notice of the dispute by the party asserting noncompliance. In the event that the dispute is not resolved within ninety days of the notice of the claim, either party may request the dispute be solved through arbitration. Any arbitration under this provision shall be conducted under the commercial arbitration rules of the American Arbitration Association. (j) Personnel of a participating political subdivision responding to or rendering assistance for a request who sustain injury or death in the course of, and arising out of, their employment are entitled to all applicable benefits normally available to personnel while performing their duties for their employer. Responders shall receive any additional state and federal benefits that may be available to them for line-of-duty deaths. (k) All activities performed under this section are deemed hereby to be governmental functions. For the purposes of liability, all persons responding under the operational control of the requesting political subdivision are deemed to be employees of the requesting participating political subdivision. (l) Whenever the law-enforcement officials of any political subdivision are rendering outside aid pursuant their lawful authority, and with the approval of the Director of the West Virginia Division of Homeland Security and Emergency Management, and under the authority of a state of emergency or state of preparedness as officially proclaimed by the Governor, such law-enforcement officials shall have the same authority, powers, duties, rights, privileges and immunities as if they were performing their law-enforcement duties in the political subdivisions in which they are normally employed. The authority vested in the law-enforcement official, in accordance with this section, shall vest upon reporting in person to the Emergency Management Agency official in charge and on duty at the county or city of destination assignment. The law-enforcement official shall act under the authority, supervision and control of the highest ranking law-enforcement official within the assigned outside jurisdiction. Law enforcement and powers of arrest authority will not attach to the law-enforcement official while in transit from his or her jurisdiction of origin en route to his or her assigned jurisdiction under intrastate mutual aid assistance.
ARTICLE 5A. WEST VIRGINIA EMERGENCY RESPONSE AND COMMUNITY RIGHT-TO-KNOW ACT. §15-5A-1. Declaration of purpose. The Legislature recognizes that Title III of the Superfund Amendments and Reauthorization Act of 1986: The Emergency Planning and Community Right-to-Know Act of 1986, P.L. 99-499, enacted by the United States Congress and signed into law on October 17, 1986, has two primary objectives, i.e., to require states and local communities to develop comprehensive emergency response plans, and to establish a program for the collection and dissemination to the public of information on certain hazardous chemicals and toxic chemicals in their communities. The purpose of this article is to enable and authorize this state to fulfill its obligations under the federal statute.
§15-5A-2. Jurisdiction of West Virginia emergency response commission. The state emergency response commission shall have within its jurisdiction and supervision the preparation and implementation of comprehensive emergency response plans for each designated emergency planning district within the state so as to comply with the requirements of 42 U.S.C. §11001, et seq. The commission, through the Office of Emergency Services, shall also be responsible for providing the citizens of this state with information in accordance with the requirements of 42 U.S.C. §11001, et seq. and this article. All state agencies shall cooperate with and assist the commission in all commission duties and responsibilities.
§15-5A-3. Definitions. Unless the context in which used clearly requires a different meaning, as used in this article: (a) "Best management practices" means any practices made applicable to a facility pursuant to section 304(e) of the Clean Water Act and the federal regulations promulgated thereunder. (b) "Clean Water Act" means the Federal Water Pollution Control Act, P.L. 92-500, enacted on October 18, 1972, and all subsequent amendments to that act. (c) "Code" means the Code of West Virginia, 1931, as amended. (d) "Commission" means the state emergency response commission. (e) "Committee" means a local emergency planning committee. (f) "Emergency planning district" means a geographic area designated by the commission as requiring its own comprehensive emergency response plan. The commission may designate existing political subdivisions or multijurisdictional planning organizations as such districts. (g) "Facility" means a facility subject to the provisions of 42 U.S.C. §11001, et seq., and this article, pursuant to the provisions of 42 U.S.C. §11002. (h) "Local emergency planning committee" means that group of persons, for each emergency planning district, who are appointed by the state emergency response commission in accordance with the provisions of section seven of this article. (i) "Resource Conservation and Recovery Act" means P.L. 94-580, enacted on the October 21, 1976, and all subsequent amendments to that act. (j) "Spill prevention control and countermeasure plan" means any plan developed pursuant to section 112.3 of title 40 of the code of federal regulations. (k) "Title III" means the Emergency Planning and Community Right-to-Know Act of 1986, P.L. 99-499.
§15-5A-4. State emergency response commission created; composition and organization, qualifications, terms, removal, compensation, meetings. (a) There is hereby created the state emergency response commission. (b) The state emergency response commission shall consist of eleven members, including the director of the Division of Environmental Protection, the commissioner of the division of public health, the chief of the office of air quality of the Division of Environmental Protection, the director of the Office of Emergency Services, the superintendent of the division of public safety, the commissioner of the Division of Highways; one designee of the Public Service Commission and one designee of the state Fire Marshal, all of whom are members ex officio. A representative from the chemical industry, a representative of a municipal or volunteer fire department and a representative of the public who is knowledgeable in the area of emergency response shall be appointed by the Governor as public members of the state emergency response commission. The director of the Office of Emergency Services serves as the chair of the commission and may cast a vote only in the event of a tie vote. Members serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties under this article. The initial public members appointed by the Governor shall serve for a term ending on July 1, 1991. A successor to a public member of the commission shall be appointed in the same manner as the original public members and has a term of office expiring two years from the date of the expiration of the term for which his or her predecessor was appointed. In cases of any vacancy among the public members, such vacancy shall be filled by appointment by the Governor. Any member appointed to fill a vacancy on the commission occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed for the remainder of such term. Members appointed by the Governor may be removed by the Governor in case of incompetency, neglect of duty, gross immorality or malfeasance in office. (c) The commission shall elect from its membership a vice chair and appoint a secretary. The secretary need not be a member of the commission. The vice chair shall preside over the meetings and hearings of the commission in the absence of the chair. The commission may appoint and employ such personnel as may be required, whose duties shall be defined by the commission and whose compensation, to be fixed by the commission, shall be paid out of the state Treasury, upon the requisition of the commission, from moneys appropriated for such purposes. (d) The commission may establish procedural rules in accordance with chapter twenty-nine-a of the code for the regulation of its affairs and the conduct of all proceedings before it. All proceedings of the commission shall be entered in a permanently bound record book, properly indexed, and the same shall be carefully preserved and attested by the secretary of the commission. The commission shall meet at such times and places as may be agreed upon by the commissioners, or upon the call of the chairman of the commission or any two members of the commission, all of which meetings shall be general meetings for the consideration of any and all matters which may properly come before the commission. A majority of the commission constitutes a quorum for the transaction of business.
§15-5A-5. Powers and duties of the commission. The commission shall have and may exercise the following powers and authority and shall perform the following duties: (a) Designate emergency planning districts; (b) Appoint local emergency planning committees for each emergency planning district and supervise and coordinate the activities of such committees; (c) Revise any designations and appointments made under subsections (a) and (b) of this section as it deems appropriate: Provided, That any interested person may petition the state emergency response commission to modify the membership of a local emergency planning commission; (d) Designate, if necessary, additional facilities which shall be subject to the requirements of this article, provided such designation is made after public notice and opportunity for comment as provided under article three, chapter twenty-nine-a of the code; (e) Review the emergency response plans submitted by the local emergency planning committees and make recommendations to the local committees on revisions of the plan that may be necessary to ensure coordination of such plan with the plans of other emergency planning districts and other existing state and local emergency response plans; (f) Enter into cooperative agreements with other state agencies designating specific responsibilities to be performed by such state agencies to implement the provisions of this article; (g) Promulgate procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, establishing rules of practice before the commission; (h) Promulgate procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, establishing procedures for receiving and processing requests from the public for information in accordance with the provisions of 42 U.S.C. §11001, et seq., and this article, and prescribing forms and instructions for requesting such information; (i) Promulgate procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, prescribing forms and instructions for the submission and receipt of confidential information; (j) Promulgate rules establishing the following fees which shall be deposited in a special account for the administration of this act and which shall be reasonably calculated to recover the necessary expenses incurred by the Office of Emergency Services in the administration of this article: (1) An emergency planning notification fee not to exceed $100 to be paid by a facility when it makes the emergency planning notification required under SARA, Title III, sections 301 through 303; (2) An inventory form fee not to exceed $2,500 to be paid annually by a facility when it submits the emergency and hazardous chemical inventory forms or material safety data sheet required under SARA, Title III, sections 311 and 312; and (3) A surcharge fee not to exceed twenty percent of the fee otherwise payable to be paid by facilities which fail to pay the fees in paragraphs (1) and (2) in a timely manner; (k) Establish an emergency planning grant program to be administered by the commission. The grant programs will be funded by fees collected to administer this act pursuant to subdivision (j) of this section. The commission shall promulgate rules which establish the method of awarding such grants to local emergency planning committees to assist them in performing their responsibilities under this article; (l) Promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to implement the provisions of this article; and (m) The chairman of the commission may order a facility owner or operator to comply with the requirements of applicable federal law, this article and any rules or regulations promulgated thereunder. When the chairman has reasonable cause to believe that there exists a failure to comply with the provisions of applicable federal law, this article or any rule or regulation promulgated thereunder or any order entered by the chairman, he or she may request the Attorney General to commence an action for civil penalties, injunctive relief or other appropriate relief to enforce such provisions, rules and regulations or order. Such action may be brought in any federal district court having jurisdiction, or in the Circuit Court of Kanawha County or the county where the facility or a major portion thereof is located.
§15-5A-6. Powers and duties of the Office of Emergency Services. The Office of Emergency Services, as created by article five, chapter fifteen of the Code of West Virginia, shall perform the administrative duties of the state emergency response commission. The administrative duties to be performed by the Office of Emergency Services shall include, but shall not be limited to, the following: (a) Receive, catalogue and organize information required to be submitted to the commission; (b) Utilize existing state response organizations, plans and facilities to the extent possible; (c) Upon concurrence of the commission, enter into training exercise agreements with federal response agencies; (d) Coordinate with other state agencies on training for first responders and emergency service personnel; (e) Respond to requests to the commission from the public for information pursuant to this act; (f) Perform such preliminary analysis and collect such information as may be required to enable the commission to fully review local emergency response plans; and (g) The director may employ such clerical and technical personnel and acquire data management and other equipment and office space as may be necessary to carry out the provisions of this act.
§15-5A-7. Establishment of emergency planning districts and committees; composition, organization, duties. (a) The state emergency response commission shall designate emergency planning districts in order to facilitate preparation and implementation of emergency plans. After designating emergency planning districts, the state emergency response commission shall appoint members of a local emergency planning committee for each emergency planning district. Each committee shall include representatives from each of the following groups or organizations: (1) Elected state and local officials; (2) law enforcement, civil defense, fire fighting, first aid, health, local environmental, hospital and transportation personnel; (3) broadcast and print media; (4) community groups; and (5) owners and operators of facilities subject to the requirements of this article. In addition to the above members, each county commission president from every county within the district, or a member of the county commission designated by the president, shall be appointed as a member of the committee and such appointment may fulfill the requirement to appoint elected local officials. (b) Each local committee shall appoint a chairperson and establish procedural rules by which the committee shall function. Such rules shall include provisions for public notification of committee activities, public meetings to discuss the emergency plan, public comments, response to such comments by the committee and distribution of the emergency plan. (c) The local committees shall submit their proposed procedural rules to the state emergency response commission for review and comment no later than January 1, 1990. If any local committees fail to submit proposed procedural rules, the state emergency response commission shall itself promulgate rules applicable to such local committees. (d) The local emergency planning committee shall have and may exercise the following powers and authority and shall perform the following duties: (1) Establish procedures for receiving and processing requests from the public for information regarding any emergency response plan, material safety data sheet, emergency, first aid and medical treatment procedures, list described in 42 U.S.C. §11021(a)(2), inventory form, toxic chemical release form, or followup emergency notice, including tier II information under 42 U.S.C. §11022; (2) Designate an official to serve as coordinator for information for processing requests for information from the public; (3) Develop and implement a comprehensive emergency response plan in accordance with 42 U.S.C. §11003, and review such plan once a year, or more frequently as changed circumstances in the community or at any facility may require: Provided, That such comprehensive emergency response plans may not require a covered facility to revise, modify or otherwise alter any emergency release response or release prevention plan that has been prepared pursuant to any other state or federal statute or regulation including, but not limited to, contingency plans developed under the Resource Conservation and Recovery Act, Spill Prevention and Countermeasure Plans, or Best Management Practices Plans developed under the Clean Water Act; (4) Prior to implementation, submit a copy of the prepared emergency response plan to the state emergency response commission for review and recommendation; (5) Publish annually a notice in local newspapers that the emergency response plan is available for review, as are those material safety data sheets, emergency, first aid and medical treatment procedures, inventory forms and followup emergency notices which have been submitted to the committee. The notice shall also state that members of the public who wish to review any such plan, sheet, form or followup notice may do so at a designated location; (6) Establish deadlines for responding to information requests from the public; and (7) Receive, catalogue and organize information required to be submitted to the committee under the provisions of 42 U.S.C. §11001, et seq.
§15-5A-8. Severability. The provisions of this article are severable and if any provision, section or part thereof shall be held invalid, unconstitutional or inapplicable to any person or circumstance, such invalidity, unconstitutionality or inapplicability shall not affect or impair any of the remaining provisions, sections or parts of the article or their application to him or to other persons and circumstances. It is hereby declared to be the legislative intent that this article would have been adopted if such invalid or unconstitutional provisions, section or part had not been included therein.
ARTICLE 5B. MINE AND INDUSTRIAL ACCIDENT RAPID RESPONSE SYSTEM. §15-5B-1. Legislative purpose; Mine and Industrial Accident Rapid Response System created. (a) The Legislature finds that the health and safety of persons working in and around the mining industry and other industries is of paramount concern to the people of West Virginia and that deaths and serious injuries resulting from dangerous working conditions cause grief and suffering to workers and their families. The Legislature further finds that there is an urgent need to provide more effective means and measures for improving emergency response and communications for dealing with mine and industrial accidents. The Legislature declares that it is in the best interest of the citizens of West Virginia to designate an emergency telephone number for mining or industrial personnel to initiate a rapid emergency response to any mine or industrial accident. Provision of a single, primary emergency number through which emergency services can be quickly and efficiently obtained and through which the response of various state agencies charged by law with responding to mine and industrial emergencies can be coordinated will significantly contribute to the public good. The Mine and Industrial Accident Rapid Response System will provide a vital resource to the citizens of West Virginia by providing a critical connection between the Director of the Office of Miners' Health, Safety and Training, the Division of Homeland Security and Emergency Management, local and regional emergency services organizations and other responsible agencies. (b) The Mine and Industrial Accident Rapid Response System is hereby created and shall consist of: (1) The Mine and Industrial Accident Emergency Operations Center established in section two of this article; and (2) The 24-hour-a-day statewide telephone number established by the Director of the Division of Homeland Security and Emergency Management.
§15-5B-2. Mine and industrial accident emergency operations center. (a) The Director of the Division of Homeland Security and Emergency Management, working in conjunction with the Office of Miners' Health, Safety and Training, shall maintain the Mine and Industrial Accident Emergency Operations Center, which shall be the official and primary state government 24-hour-a-day communications center for dealing with mine and industrial accidents. (b) The emergency operations center shall be operated twenty-four hours a day, seven days a week by emergency service personnel employed by the director to provide emergency assistance and coordination to mine and industrial accidents or emergencies. (c) The emergency operations center shall be readily accessible twenty-four hours a day at a statewide telephone number established and designated by the director.
§15-5B-3. Emergency mine response. (a) To assist the Division of Homeland Security and Emergency Management in implementing and operating the Mine and Industrial Accident Rapid Response System, the Office of Miners' Health, Safety and Training shall, on a quarterly basis, provide the emergency operations center with a mine emergency contact list. In the event of any change in the information contained in the mine emergency contact list, the changes shall be provided immediately to the emergency operations center. The mine emergency contact list shall include the following information: (1) The names and telephone numbers of the Director of the Office of Miners' Health, Safety and Training, or his or her designee, including at least one telephone number at which the director or designee may be reached at any time; (2) The names and telephone numbers of all district mine inspectors, including at least one telephone number for each inspector at which each inspector may be reached at any time; (3) A current listing of all regional offices or districts of the Office of Miners' Health, Safety and Training, including a detailed description of the geographical areas served by each regional office or district; and (4) The names, locations and telephone numbers of all mine rescue stations, including at least one telephone number for each station that may be called twenty-four hours a day and a listing of all mines that each mine rescue station serves in accordance with the provisions of section thirty-five, article one, chapter twenty-two-a of this code. (b) Upon the receipt of an emergency call regarding any accident, as defined in section sixty-six, article two, chapter twenty-two-a of this code, in or about any mine, the emergency operations center shall immediately notify: (1) The Director of the Office of Miners' Health, Safety and Training or his or her designee; (2) The district mine inspector assigned to the district or region in which the accident occurred; and (3) Local emergency service personnel in the area in which the accident occurred. (c) The director or his or her designee shall determine the necessity for and contact all mine rescue stations that provide rescue coverage to the mine in question. (d) In the event that an emergency call regarding any accident, as defined in section sixty-six, article two, chapter twenty-two-a of this code, in or about any mine, is initially received by a county answering point, as defined in article six, chapter twenty-four of this code, the call shall be immediately forwarded to the Mine and Industrial Accident Emergency Operations Center. (e) Nothing in this section shall be construed to relieve an operator, as defined in section two, article one, chapter twenty-two-a of this code, from any reporting or notification obligation under section sixty-six, article two, chapter twenty-two-a of this code and under federal law. (f) The Mine and Industrial Accident Rapid Response System and the emergency operations center are designed and intended to provide communications assistance to emergency responders and other responsible persons. Nothing in this section shall be construed to conflict with the responsibility and authority of an operator to provide mine rescue coverage in accordance with the provisions of section thirty-five, article one, chapter twenty-two-a of this code or the authority of the Director of the Office of Miners' Health, Safety and Training to assign mine rescue teams under the provisions of subsection (d) of said section or to exercise any other authority provided in chapter twenty-two-a of this code.
§15-5B-3a. Industrial facility emergency event notification and access. (a) Definitions. -- Unless the context in which used clearly requires a different meaning, the following words and phrases as used in this section have the following meanings: (1) "Industrial facility" means: (A) Any facility that is required to submit a risk management plan to the United States Environmental Protection Agency pursuant to regulations promulgated under Section 112(r) of the Clean Air Act of 1990, 42 U.S.C. §7412(r), including the property upon which the facility is located and any buildings appurtenant thereto or associated therewith, including storage facilities; or (B) A facility which is a factory, mill, plant or refinery, other than a coal facility, including the property upon which a factory, mill, plant or refinery is located and any buildings appurtenant thereto or associated therewith, including storage facilities, found by the director to be of a type to have a reasonable potential to have an emergency event: Provided, That before any facility may be subject to the provisions of this section, the owner or operator of each facility must be placed on actual written notice via certified mail, return receipt requested, of the facility's inclusion thereon, as well as the requirements imposed by the provisions of this section and any rules promulgated thereunder: Provided, however, That the list required by the provisions of this section shall be filed with the President of the Senate and the Speaker of the House of Delegates by the first day of the 2010 legislative session. (2) "Appropriate state and local officials" means the Governor or his or her representative, the Director of the Division of Homeland Security and Emergency Management, a representative designated by the Director of the Division of Homeland Security and Emergency Management who has been trained and qualified by the Federal Emergency Management Agency's (FEMA) National Incident Management System (NIMS) program and/or a representative of a local emergency management agency who has been trained and qualified by FEMA's NIMS program. (3) "Director" means the Director of the Division of Homeland Security and Emergency Management. (4) "Emergency event" means an unplanned event, including, but not limited to, an explosion, a fire that cannot be contained within fifteen minutes of discovery, the release of a reportable quantity, as specified in 40 C.F.R. §302 (2009) or its successor, of an extremely hazardous substance listed in the appendices to 40 C.F.R. §355 (2009) or its successor, loss of life or serious personal injury at an industrial facility: Provided, That the director may, by promulgation of a legislative rule, establish a higher threshold report level for a particular extremely hazardous substance than is set in the aforementioned Code of Federal Regulations citation. (b) Reporting requirement. -(1) Within fifteen minutes of the industrial facility ascertaining the occurrence of an emergency event at an industrial facility, the industrial facility shall contact the Mine and Industrial Accident Emergency Operations Center by telephone at the statewide telephone number established by the director or shall contact a local emergency telephone system, as defined in article six, chapter twenty-four of this code, by telephone at the number established by the system to communicate the occurrence of the emergency event: Provided, That if telephone communications fail for any reason, the industrial facility shall contact local emergency services in the most expeditious manner possible. The industrial facility shall provide the following information: (A) The name and title of the individual making the report; (B) The name and address of the facility; and (C) Notification that an emergency event has occurred. (2) If the caller has ready access to the following information, he or she shall also provide: (A) Then-available information concerning the nature and extent of the emergency event, including any information that concerns the existence or nonexistence of potential threats to the public health; (B) In the event of an unplanned fire that cannot be contained within fifteen minutes, explosion or release as defined in this section, preliminary information regarding the type of substance involved and, if a release, the estimated amount released, if known; and (C) The name, title and contact information of the individual designated to serve as a contact person on behalf of the industrial facility. (3) Any call made pursuant to this subsection may be recorded by the agency receiving the call. In the event that an industrial facility contacts a local emergency telephone system to report an emergency event, the local emergency telephone system shall immediately forward all information received to the Mine and Industrial Accident Emergency Operations Center. (c) Event communications. -- As soon as practicable after providing the notice required under subsection (b) of this section, the industrial facility shall implement a communications system designed to provide timely information to appropriate state and local officials. At a minimum, the industrial facility shall designate a person to serve as a contact for state and local emergency responders. Any person so designated shall, upon the request of an appropriate state or local official, provide such additional information known or subsequently known that may be necessary to assess the extent of the emergency or to provide appropriate public assistance. (d) Authorized access to public officials. -- As soon as practicable after the occurrence of an emergency event, the industrial facility shall, upon request, provide appropriate state and local officials with timely authorized access to the person or persons charged with managing the event on behalf of the facility and the area(s) where the emergency event is being managed or the industrial facility's response to the emergency event is being coordinated. The industrial facility shall also provide appropriate state and local officials with timely authorized access to any areas affected by the emergency event: Provided, That the industrial facility has determined those areas to be reasonably safe: Provided, however, That within thirty minutes of obtaining information that affects the public health, safety and welfare, state and local officials shall notify the public of any hazardous materials or events which may affect the area. (e) Civil penalties. -(1) The director shall impose a civil penalty of up to $100,000 on the industrial facility if he or she determines that the industrial facility failed to comply with the reporting requirement of subsection (b) of this section. No penalty shall be imposed upon an industrial facility giving notice pursuant to this section for unintentionally providing inaccurate or incomplete preliminary information to the Mine and Industrial Accident Emergency Operations Center or local emergency telephone system: Provided, That the industrial facility implemented reasonable efforts to provide the most accurate and complete preliminary information possible: Provided, however, That the industrial facility implemented reasonable efforts to correct inaccurate or incomplete preliminary information reported to the Mine and Industrial Accident Emergency Operations Center or local emergency telephone system once such information was determined by the industrial facility to be inaccurate or incomplete. (2) The director shall impose a civil penalty on the operator or operators of an industrial facility if he or she determines that the industrial facility failed to comply with the communication or access requirements of subsections (c) and (d) of this section. Application of this subdivision and amounts levied as civil penalties by the director shall be determined in accordance with legislative rules promulgated pursuant to article three, chapter twenty-nine-a of this code. (3) The director may waive the imposition of a civil penalty imposed under this section: Provided, That he or she finds that the failure to comply with the requirements of this section was caused by circumstances outside the control of the industrial facility. (4) All moneys collected pursuant to this section shall be deposited in the Hazardous Waste Emergency Response Fund, as established pursuant to section three, article nineteen, chapter twenty-two of this code. (f) Nothing in this section may be construed to: (1) Relieve an industrial facility from any other reporting or notification requirement imposed under state or federal law; (2) Limit in any way the jurisdiction of state and local emergency responders; (3) Limit the police power authority of the Governor; or (4) Limit the authority of the state Fire Marshal. (g) The director, working in cooperation with the Department of Environmental Protection, the state Fire Marshal and the state Emergency Response Commission, shall promulgate legislative rules identifying a list of industrial facilities that are subject to the requirements of this section. (h) The Division of Homeland Security and Emergency Management is authorized to promulgate rules, including emergency rules, pursuant to the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this section.
§15-5B-4. Study of other industrial emergencies. The Director of the Division of Homeland Security and Emergency Management shall immediately cause a study to be conducted to determine the feasibility of providing emergency coverage to other industrial, manufacturing, chemical or other emergencies through the Mine and Industrial Accident Rapid Response System. On or before November 1, 2006, the director shall submit a report to the Governor, the President of the Senate and the Speaker of the House of Delegates setting forth the findings of his or her study and recommendations for legislation consistent with the purposes of this article.
§15-5B-5. Rule-making authority. The Director of the Division of Homeland Security and Emergency Management shall propose emergency and legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code regarding the implementation and administration of the Mine and Industrial Accident Rapid Response System. The requirements of this article enacted during the 2006 regular session of the Legislature in January, shall not be implemented until the emergency rule authorized herein has been approved.
§15-5B-6. Mine Safety Anonymous Tip Hotline. The Director of the Division of Homeland Security and Emergency Management shall maintain a toll free number that allows callers to report mine safety violations and hazardous coal mining conditions and practices. The information collected shall be provided to the Office of Miners' Health, Safety and Training. No information may be submitted to the Office of Miners' Health, Safety and Training that would allow identification of the person placing the call. The calls are confidential and any documentation thereof or related thereto is not subject to release and is exempt from the provisions of article one, chapter twenty-nine-b of this code. The director shall distribute printed information to all state mining operations alerting miners to the existence of the toll free line. Each mining operation shall post this notice at the location used to post notices pursuant to section eighteen, article one, chapter twenty-two-a of this code.
ARTICLE 5C. REPORTING OF EMERGENCY INCIDENTS BY WELL AND PIPELINE OPERATORS. §15-5C-1. Definitions. When used in this article: (1) “Director” means the Director of the Division of Homeland Security and Emergency Management. (2) “Incident” means: (A) An injury to an individual at a well, well pad or pipeline facility that results in death or serious bodily injury or that has a reasonable potential to cause death; (B) An unintended confinement of an individual in an enclosed space at a well, well pad or pipeline facility from which a person will not be released for a period exceeding fifteen minutes; (C) The unintended ignition or explosion of oil, natural gas or other substance at a well, well pad or pipeline facility; (D) An unintended fire in or about a well, well pad or pipeline facility not extinguished within fifteen minutes of discovery of the unintended fire; and (E) Any unintended release of poisonous or combustible substances that have a reasonable potential to cause death. (3) “Pipeline facility” means, without limitation, new and existing pipe, pipe rights-of-way and any equipment, facility, or building used in the transportation of oil or natural gas or the treatment of oil or natural gas during the course of transportation: Provided, That the term “pipeline facility” shall not include pipelines of four inches or less, measuring the inside diameter, that service a farm, commercial structure or residence. (4) “Pipeline operator” means any person or persons, firm, partnership, independent contractor, company or corporation that constructs, maintains or operates a pipeline facility. (5) “Well” means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction or injection or placement of any liquid, oil or natural gas, or any shaft or hole sunk or used in conjunction with such extraction or injection or placement. The term “well” does not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of core drilling or pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural or public use. (6) “Well pad” means any area constructed and maintained for use to create a well. (7) “Well operator” means any person or persons, firm, partnership, independent contractor, company or corporation that drills or engages in hydraulic fracturing for any liquid, oil or natural gas, or that completes or operates wells to produce any liquid, oil or natural gas.
§15-5C-2. Reporting requirements. (a) In addition to any other requirements imposed by law, all pipeline operators and well operators shall report incidents to the Division of Homeland Security and Emergency Management at the Mine and Industrial Accident Call Center at 1-866-987-2338, or other such number as may be identified by the Director within fifteen minutes of ascertaining the occurrence of an incident at a well, well pad or pipeline facility. Pipeline operators and well operators may satisfy this requirement by contacting the local emergency telephone system and orally reporting the information required by this section. (b) Contents of report: (1) The initial report shall include the following minimum information: (A) The name, title, and business affiliation of the individual making the report; (B) The identification and location of the well, well pad or pipeline facility; and (C) Notification that an incident has occurred. (2) If the caller has ready access to the following information, he or she shall also provide: (A) Then-available information concerning the nature and extent of the incident, including any information that concerns the existence or nonexistence of potential threats to the public health; (B) In the event of an unplanned fire that cannot be contained within fifteen minutes, explosion or release, preliminary information regarding the type of substance involved and, if a release, the estimated amount released, if known; and (C) The name, title, business affiliation, and contact information of the individual designated to serve as a contact person on behalf of the pipeline operator or well operator. (c) Any local emergency telephone system receiving an initial notification shall immediately forward all information received to the Division of Homeland Security and Emergency Management at the Mine and Industrial Accident Call Center at 1-866-987-2338, or other such number as may be identified by the Director. (d) All calls received by the Division of Homeland Security and Emergency Management at the Mine and Industrial Accident Call Center shall be recorded for documentation purposes. Recording of calls shall be automatic, and the recorded call information, including time of call and complete voice transcripts, shall be made available to the public upon receipt of a request to the Director in accordance with the West Virginia Freedom of Information Act, article one, chapter twenty-nine-b of this code. (e) The Director shall impose a civil administrative penalty of not less than $2,500 but not to exceed $50,000 on the pipeline operator or well operator if it is determined that the pipeline operator or well operator failed to give timely notice as required by this section: Provided, That the Director shall waive imposition of the civil administrative penalty if the failure to give the required notice: (1) Occurred as a result of circumstances wholly outside the control of the pipeline operator or well operator; (2) Occurred because the pipeline operator or well operator was attempting to stabilize the incident; (3) Occurred because the pipeline operator or well operator was rendering emergency assistance; or (4) Resulted from the incident occurring in a location with no or inadequate wireless communications coverage and notice was provided within fifteen minutes of reestablishing communication. (f) Any pipeline operator or well operator aggrieved by the imposition of a civil administrative penalty may request within thirty days of receipt of a written communication imposing a civil administrative penalty that the Director reconsider the imposition or amount of the civil administrative penalty. If reconsideration is denied, the pipeline operator or well operator shall have a right of appeal to the Circuit Court of Kanawha County, West Virginia.
ARTICLE 6. STATE ARMORY BOARD. §15-6-1. Legislative purpose and authority. In order to provide modern and efficient facilities for the training, operations, supply and administration of the National Guard, to provide for the defense of the state in time of war and to repel invasion and suppress insurrection, to provide facilities for use in time of fires, floods, riots and other disasters, to provide public meeting places, recreational and other facilities and to promote the general welfare, the state armory board (hereinafter created) is hereby authorized and empowered to construct, acquire, improve, maintain, repair and operate armories and armory projects (as hereinafter defined) and to issue armory board revenue bonds of the State of West Virginia, payable solely from revenues, to pay the cost of such projects.
§15-6-2. Armory board revenue bonds not to constitute state debt, etc. Armory board revenue bonds issued under the provisions of this article shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision, but such bonds shall be payable solely from the funds herein provided therefor from revenues. All such bonds shall contain on the face thereof a statement to the effect that neither the state nor any political subdivision thereof shall be obligated to pay the same or the interest thereon except from revenues of the project or projects for which they are issued and that neither the faith and credit nor the taxing power of the state or any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds.
§15-6-3. Definitions. The following terms, wherever used or referred to in this article shall have the following meanings, unless a different meaning clearly appears from the context: (a) The word "board" shall mean the state armory board created by section four of this article, or if such board be abolished, any board or officer succeeding to the functions thereof, or upon whom the powers given by this article to the board shall be given by law. (b) The word "bonds" shall mean armory board revenue bonds issued under the provisions of section seven of this article. (c) The term "armory" shall mean and embrace buildings, areas and centers and the equipment and other facilities appurtenant thereto, including armories, arsenals, ranges, campgrounds, service centers, training areas, concentration areas, and warehouses, used for the training, administration, operations and maintenance of the National Guard or any combination or combinations thereof, and any other equipment and facilities incorporated therein for the accomplishment of the purposes set forth in section one of this article. (d) The words "project" or "armory project" shall be deemed to mean collectively the acquisition and construction of buildings, structures and other works, together with all roads, incidental approaches and other facilities appurtenant thereto and all property, rights, easements and other interests, which the board shall determine to construct, acquire or improve under the provisions of this article in order to provide new or improved military facilities, and the necessary maintenance and equipment therefor. (e) The term "cost of project" shall embrace the cost of construction, the cost of all land, rights of way, property rights, easements and interest acquired by the board for such construction, the cost of all property, material, labor, machinery and equipment deemed essential thereto, cost of improvements, financing charges, interest during construction and for a period not to exceed one year after completion of construction, cost of preliminary estimates, plans, surveys and other expenses necessary or incident to determining the feasibility or practicability of construction of the project, administrative expenses and all other expenses, including legal fees, trustees', engineers' and architects' fees which may be necessary or incident to the financing, construction and placing of the project in operation. (f) The term "rent" or "rental" shall include all moneys received for the use of any part of the project, whether from the State of West Virginia, or any officer, department or public corporation thereof, or from any private corporation or person: Provided, That nothing in this article shall be taken to authorize the payment by or on behalf of the state of any rent in excess of the fair rental value of the property used by or for such state officer, or department, or public corporation in the exercise of his or its statutory duties.
§15-6-4. State armory board -- Generally. The state armory board is continued. The board may sue and be sued, and plead and be impleaded. It is a body corporate and is an agency of the state. The exercise by the board of the powers conferred by this article in the acquisition, financing, construction, operation and maintenance of armories and armory projects is an essential governmental function. The board consists of the Governor or his or her designee, the Secretary of State and the Auditor. The Governor or his or her designee, is chairman of the board and the Secretary of State is the secretary of the board. Two members of the board is a quorum and the vote of two members is necessary for any action taken by the board. The members and officers of the board are not entitled to compensation for their services, but each member shall be reimbursed for expenses necessarily incurred in the performance of his or her duties.
§15-6-5. State armory board -- Duties. The board shall be responsible for the acquisition, financing, construction, and disposition of armories. It shall properly maintain, repair, operate, manage and control all armories, fix the rates of rental, and establish bylaws and rules and regulations for their use and operation, and may make and enter into all contracts, agreements necessary and incidental to the performance of its duties and execution of its powers under this article. It shall audit and approve all bills, claims and accounts in connection with the construction, acquisition, maintenance, repair and operation of all armories before such bills, claims and accounts shall be paid, and it shall perform such other duties as this article may require or as may be otherwise required by law.
§15-6-6. State armory board -- Powers. The board is hereby authorized and empowered: (a) To adopt bylaws for the regulation of its affairs and the conduct of its business. (b) To adopt an official seal and alter the same at pleasure. (c) To sue and be sued in its own name, plead and be impleaded: Provided, however, That any and all actions at law or in equity against the board shall be brought only in the county in which the principal office of the board is located. (d) To construct, maintain, repair and operate and dispose of armories and armory projects at such locations within the state as may be determined by the board. (e) To issue armory board revenue bonds of the State of West Virginia payable solely from revenues, for the purpose of paying all or any part of the cost of any one or more armory projects. (f) To contract and to acquire in the name of the state by purchase or otherwise on such terms and in such manner as it may deem proper, or by the exercise of the right of condemnation in the manner hereinafter provided, such public or private lands, including public parks or reservations, or parts thereof or rights therein, rights of way, property, rights, easements and interests, as it may deem necessary for carrying out the provisions of this article; and to dispose of the same in accordance with the law: Provided, however, That no compensation shall be paid for public lands owned by the state or any subdivision thereof so taken and that all public property damaged in carrying out the powers granted by this article, shall be restored or repaired and placed in its original condition as nearly as practicable. (g) To acquire, hold and dispose of real and personal property in the exercise of its powers and for its corporate purposes. (h) To appoint officers and agents and to fix their compensation. (i) To make and execute all contracts, agreements and other instruments necessary or incident to the performance of its duties and for its corporate purposes. (j) To receive and accept from any federal agency grants for or in aid of armory projects, and to receive and accept aid or contributions of either money, property, labor or other things of value, from any source including counties, municipalities, boards of education and other political subdivisions or agencies of the state. (k) To charge rent for the use of any armory or armory project, or any part thereof, subject to and in accordance with such agreements with bondholders as may be made as hereinafter provided. (l) To enter upon any lands or premises for the purposes of making surveys, soundings and examinations. (m) To do all things necessary or convenient to carry out the powers granted in this article, including the management and use of armories and armory projects not inconsistent with their use by the state for armory purposes as defined herein.
§15-6-6a. Transfer of powers and duties to the Adjutant General. (a) Notwithstanding the provisions of sections five and six of this article, all powers and duties of the state armory board, with respect to any armory or armory project upon which there is no bonded indebtedness, and the income of which is not dedicated to retire any bonded indebtedness, to maintain, repair, operate, manage and control the armories; to fix, revise charge and collect rentals; to establish bylaws and rules for their use and operation; to enter into contracts and other agreements; and to manage and control the financial operations of armory facilities, are hereby transferred to the Adjutant General. (b) The Adjutant General shall transfer any moneys appropriated to the Adjutant General necessary for operation and maintenance of those National Guard armories secured by bonded indebtedness to the state armory board, and these moneys may not be commingled with other funds. With respect to all other appropriated moneys, whether from state or federal funds, the Adjutant General has signature authority with respect to the management of state armory facilities, is authorized to issue requisitions upon the Auditor for payment of money out of the State Treasury and has all the powers of the principle officer of a state spending unit. (c) The special revenue account of the state armory board provided for in section ten of this article and designated the "general armory fund," together with all unexpended balances remaining in the account on July 1, 1999, shall be transferred on that date to the Adjutant General.
§15-6-7. State armory board -- Authority to issue revenue bonds. The board is hereby empowered to raise the cost of the project, as defined hereinabove, by the issuance of armory board revenue bonds of the State of West Virginia, the principal of and interest on which bonds shall be payable solely from the special fund provided by section ten of this article for such payment. Such bonds shall be authorized by a resolution of the board which shall recite an estimate by the board of such cost, and shall provide for the issuance of bonds in an amount sufficient, when sold as hereinafter provided, to produce such cost, less the amount of any grant or grants, gift or gifts, received or in the opinion of the board expected to be received from the United States of America, or from any other source. Such bonds shall bear interest at not more than five per cent per annum, payable semiannually, and shall mature in not more than thirty years from their date or dates, and may be made redeemable at the option of the state, to be exercised by the board, at such price and under such terms and conditions as the board may fix prior to the issuance of such bonds. The board shall fix the denominations of said bonds, the principal and interest of which shall be payable at the Office of the Treasurer of the State of West Virginia, at the capitol of said state, or, at the option of the holder, at some bank or trust company in the city of New York, to be named in the bond, in such medium, as may be determined by the board. Proceeds of such bonds shall be used solely for the payment of the cost of the project and shall be deposited and checked out as provided by section nine of this article, and under such further restrictions, if any, as the board may provide. The board shall determine the form of such bonds, including coupons to be attached thereto, which bonds shall bear the facsimile signature of the Governor as chairman of the board and shall be signed by the Secretary of State as secretary of the board, under the great seal of the state, attested by the Secretary of State, and the coupons attached thereto shall bear the facsimile signature of the Governor as chairman of the board. In case any of the officers whose signatures appear on the bonds or coupons shall cease to be such officers before the delivery of such bonds, such signatures shall nevertheless be valid and sufficient for all purposes the same as if they had remained in office until such delivery. The board may provide for the registration of such bonds in the name of the owner as to the principal loan, and as to both principal and interest under such terms and conditions as the board may determine, and shall sell such bonds in such manner as it may be determined to be for the best interests of the state, taking into consideration the financial responsibility of the purchaser, and the terms and conditions of the purchaser and especially the availability of the proceeds of the bonds when required for payment of the costs of the project, such sales to be made at a price not lower than a price which, computed upon standard tables of bond values, will show a net return of five and one half percent per annum to the purchaser upon the amount paid therefor. If the proceeds of such bonds by error of calculation or otherwise, shall be less than the cost of the project, additional bonds may in like manner be issued to provide the amount of the deficiency, and unless otherwise provided for in the trust agreement hereinafter mentioned, shall be deemed to be of the same issue, and shall be entitled to payment from the same fund, without preference or priority as to the bonds before issue. If the proceeds of the bonds issued for the project shall exceed the costs thereof, surplus shall be paid into the fund provided by section ten of this article for payment of the principal and interest of such bonds. Such fund may be used for the purchase of any of the outstanding bonds payable from such fund at the market price, but at not exceeding the price, if any, of which bonds in the same year may be redeemable, and all bonds redeemed or purchased shall not again be issued.
§15-6-8. State armory board -- Trustee of holders of revenue bonds. The board may enter into an agreement or agreements with any trust company, or with any bank having the powers of a trust company, either within or outside of the state, as trustee for the holders of bonds issued hereunder, setting forth therein such duties of the state and of the board in respect to the acquisition, construction, improvement, maintenance, operation, repair, and insurance of the project, the conservation and application of all moneys, the insurance of moneys on hand or on deposit, and the rights and remedies of the trustee and the holders of the bonds, as may be agreed upon with the original purchasers of such bonds, and including therein provisions restricting the individual right of action of bondholders as is customary in trust agreements respecting bonds and debentures of corporations, protecting and enforcing the rights and remedies of the trustee and the bondholders, and providing for approval by the original purchasers of the bonds of the appointment of consulting architects, and of the security given by those who contract to construct the projects and by the bank or trust company in which the proceeds of the bonds or rental shall be deposited and for approval by the consulting architects of all contracts for construction. Any such trust agreement may pledge or assign the rents or other revenues to be received by the board, but shall not convey or mortgage any armory or armory projects or any part thereof.
§15-6-9. Application of proceeds of bonds, grants and appropriations. The proceeds of all bonds issued and sold under the provisions of this article, the proceeds of any grants, gifts or contributions received by the board and any appropriations for the construction or acquisition of armory projects shall be paid to the treasurer of the State of West Virginia who shall not commingle such moneys with other moneys, but shall deposit them in separate bank account or accounts. The moneys in said accounts shall be paid out on check of the treasurer on requisition of the chairman of the board, or such person as the board may authorize to make such requisition. All deposits of such moneys shall if required by the treasurer or the board be secured by obligations to the United States, of the State of West Virginia or of the board, of a market value equal at all times to the deposit and all banking institutions are authorized to give such security for such deposits.
§15-6-10. Rentals and other revenues from armories. The board is hereby authorized to fix, revise, charge and collect rent for the use of armories or any part or parts thereof, and to contract with the Adjutant General of the state, with any other officer, department or public corporation or political subdivision thereof and with any person, partnership, association or corporation desiring the use thereof, and to fix the terms, conditions, rents and rates of charges for such use: Provided, however, That the primary purpose of armories shall be their use by the National Guard, and their use by other than the National Guard shall be subject to and shall not interfere with such primary purpose. Such rents shall be so fixed and adjusted in respect of the aggregate of rents from armories in connection with which the bonds of any issue shall have been issued as to provide a fund sufficient with other revenues, if any, to pay (a) the cost of maintaining, repairing and operating such armories and (b) the principal of and interest on such bonds as the same shall become due and payable, and to create reserves for such purposes. All rents and other revenues of the board received from the use of armories shall be paid into a special account of the treasurer of the State of West Virginia to be known as the general armory fund and shall be used solely for the purposes of this article. Such moneys shall be checked out and secured in the same manner as provided in section nine of this article.
§15-6-11. Authority of board to pledge revenues as security. The board shall have authority to pledge all revenue derived from any project as security for any bonds issued under this article to defray the cost of such project. In any case in which the board may deem it advisable it shall also have the authority to pledge the revenue derived from any existing armories as additional security for the payment of any bonds issued under the provisions of this article to pay the cost of any armory project.
§15-6-12. Title to armory property, etc., to vest in state. Title to all property, armories and armory projects, upon delivery and acceptance, shall vest in the state and shall be held in the name of the state. The board may, upon such terms as the board may deem to be in the best interest of the state, transfer title to any armory to the United States, but may provide for the retention by the state of civil and police jurisdiction through such armory and a right to tax persons residing thereon. All money received by the board from any armory sold, damaged or destroyed, unless pledged as security for the payment of bonds issued under the provisions of this article, shall be paid to the treasurer of the state and credited to the account of the board, and may be expended for the construction, acquisition or improvement of armories under the provisions and limitations of this article.
§15-6-13. Lease of armory or armory facilities by Adjutant General. Nothing contained in this article shall be construed as limiting the authority of the Adjutant General to enter into leases for armories on behalf of the National Guard or state guard.
§15-6-14. Acquisition of property for armory projects; condemnation. The board is hereby authorized and empowered to acquire by purchase, whenever it shall deem such purchase expedient, any land, property, rights, rights-of-way, franchises, easements and other interests in lands as it may deem necessary or convenient for the construction or operation of any armory or armory project upon such terms and at such price as may be considered by it to be reasonable and can be agreed upon between the board and the owner thereof, and to take title thereto in the name of the state. Whenever a reasonable price cannot be agreed upon, or whenever the owner is legally incapacitated, or is absent, unknown or unable to convey valid title, the board is hereby authorized and empowered to acquire, by the exercise of the power of condemnation in accordance with and subject to the provisions of any and all existing laws and statutes applicable to the exercise of the power of condemnation of property for public use, any land, property, rights, rights-of-way, franchises, easements or other property deemed necessary or convenient for the construction or the efficient operation of any armory project or necessary in the restoration of public or private property damaged or destroyed. In any condemnation proceedings the court having jurisdiction of the suit, action or proceeding may make such orders as may be just to the board and to the owners of the property to be condemned and may require an undertaking or other security to secure such owners against any loss or damage by reason of the failure of the board to accept and pay for the property, but neither such undertaking or security nor any act or obligation of the board shall impose any liability upon the state or the board except such as may be paid from the funds provided under the authority of this article.
§15-6-15. Preliminary expenses of armory projects. The Adjutant General is hereby authorized in his discretion to expend out of any funds available for the purpose such moneys as may be necessary for the study of any preliminary armory project or projects and for making necessary estimates, plans and surveys to determine the feasibility of the construction and financing thereof; and all such expenses incurred by the Adjutant General prior to the issuance of bonds under the provisions of this article shall be paid by the Adjutant General and charged to the appropriate armory project, and the Adjutant General shall keep separate records and accounts showing such amounts so charged. Upon the sale of bonds for any armory project the funds so expended by the Adjutant General in connection with such project shall be reimbursed to the Adjutant General from the proceeds of such bonds.
§15-6-16. County or municipal aid for armory purposes. Any county or municipality or two or more municipalities jointly may raise and appropriate money in the aid of the acquisition, construction, maintenance, repair and improvement of any armory located therein, and to that end may issue bonds payable not more than thirty years after their issue and bearing interest at a rate not exceeding six percent per annum, and may deposit such money and funds and the proceeds of the sale of such bonds with the State Treasurer in the special account provided by section nine of this article to the credit of the proper armory project, and may make such further provisions for the maintenance and improvement of such armory and its joint use with the National Guard as may be deemed necessary: Provided, That whenever the board deems it expedient and in furtherance of the purposes of this article it may purchase and finish armories already built or partly built. Counties and municipalities constructing and financing armories under the provisions of this article or the provisions of article four-a, chapter eight of this code shall convey such armories to the armory board upon payment of all bonds, and interest thereon, issued for the construction or improvement thereof.
§15-6-17. Disposition of abandoned and unsuitable armories or armory facilities. Whenever any armory shall be no longer needed by the National Guard, or other military organization, or in the judgment of the board is unsuitable for military purposes, the board shall have the authority, and it is hereby expressly empowered to sell, transfer and convey such armory to the municipality, county or county board of education or any two or more of the same or combination thereof in which the same is located, for public purposes, upon such terms as the board may deem to be in the best interest of the state: Provided, That if such municipality, county or Board of Education shall not purchase such armory, the board shall then be authorized to sell, transfer and convey the same to any person, firm, or corporation upon such terms as the board may deem to be in the best interest of the state: Provided further, That if the armory cannot be sold in this manner, the board may lease it for other than military purposes as provided in section ten of this article.
§15-6-18. Exemption of armories, etc., from taxation. The exercise of the powers granted in this article will be in all respects for the benefit of the people of this state, and, as the construction, acquisition, improvement, operation and maintenance of armories will constitute the performance of essential governmental functions, the board shall not be required to pay any taxes or assessments upon any armory or any property acquired or used by the board under the provisions of this article or upon the income therefrom, and the bonds issued under the provisions of this article, their transfer and the income therefrom, including any profit made on the sale thereof, shall at all times be exempt from taxation within the state.
§15-6-19. Article not authority to create state debt. Nothing in this article contained shall be so construed or interpreted as to authorize and permit the incurring of state debts of any kind or nature as contemplated by the provisions of the Constitution of the State of West Virginia in relation to state debt, or any subdivision thereof.
§15-6-20. Compliance with article and state Constitution only restrictions on construction and management of projects under article. It shall not be necessary to secure from any officer or board not named in this article any approval or consent, or any certificate or finding, or to hold an election, or to take any proceedings whatever, either for the construction of such project, or the improvement, maintenance, operation, or repair thereof, or for the issuance of bonds hereunder except such as are provided by this article or are required by the Constitution of the state.
ARTICLE 7. EMERGENCY INTERIM LEGISLATIVE SUCCESSION ACT. §15-7-1. Citation of article. This article shall be known as the "Emergency Interim Legislative Succession Act."
§15-7-2. Declaration of policy. The Legislature declares: (1) That recent technological developments make possible an enemy attack of unprecedented destructiveness, which may result in the death of inability to act of a large proportion of the membership of the Legislature; (2) that to conform in time of attack to existing legal requirements pertaining to the Legislature would be impracticable, would admit of undue delay, and would jeopardize continuity of operation of a legally constituted Legislature; and (3) that it is therefore necessary to adopt special provisions as hereinafter set out for the effective operation of the Legislature.
§15-7-3. Definitions. As used in this article: (a) "Attack" means any action or series of actions taken by an enemy of the United States resulting in substantial damage or injury to persons or property in this state whether through sabotage, bombs, missiles, shellfire, or atomic, radiological, chemical, bacteriological, or biological means or other weapons or methods. (b) "Unavailable" means absent from the place of session (other than on official business of the Legislature), or unable, for physical, mental or legal reasons, to exercise the powers and discharge the duties of a legislator, whether or not such absence or inability would give rise to a vacancy under existing Constitutional or statutory provisions.
§15-7-4. Designation of emergency interim successors to legislators. Each legislator shall designate not fewer than three nor more than seven emergency interim successors to his powers and duties and specify their order of succession. Each legislator shall review and, as necessary, promptly revise the designations of emergency interim successors to his powers and duties to insure that at all times there are at least three such qualified emergency interim successors.
§15-7-5. Status, qualifications and term of emergency interim successors. An emergency interim successor is one who is designated for possible temporary succession to the powers and duties, but not the office, of a legislator. No person shall be designated or serve as an emergency interim successor unless he may under the Constitution and statutes hold the office of the legislator to whose powers and duties he is designated to succeed, but no Constitutional or statutory provision prohibiting a legislator from holding another office or prohibiting the holder of another office from being a legislator shall be applicable to an emergency interim successor. An emergency interim successor shall serve at the pleasure of the legislator designating him or of any subsequent incumbent of the legislative office.
§15-7-6. Contingent method of designating emergency interim successors. Prior to an attack, if a legislator fails to designate the required minimum number of emergency interim successors within thirty days following the effective date of this article or, after such period, if for any reason the number of emergency interim successors for any legislator falls below the required minimum and remains below such minimum for a period of thirty days, then the floor leader of the same political party in the same house as such legislator shall promptly designate as many emergency interim successors as are required to achieve such minimum number, but the emergency interim successors so designated shall not have a rank in order of succession higher than that of any remaining emergency interim successor previously designated by a legislator for succession to his own powers and duties. Each emergency interim successor designated by the respective floor leaders shall serve at the pleasure of the person designating him but the legislator for whom the emergency interim successor is designated or any subsequent incumbent of his office may change the rank in order of succession or replace at his pleasure any emergency interim successor so designated.
§15-7-7. Recording and publication of successor's name. Each designation of an emergency interim successor shall become effective when the legislator or floor leader authorized by section six of this article to make such designation files with the Secretary of State the successor's name, address and rank in order of succession. The removal of an emergency interim successor or change in order of succession shall become effective when the legislator or floor leader authorized by section six of this article to do so, files this information with the Secretary of State. All such data shall be open to public inspection. The Secretary of State shall inform the Governor, the director of the Office of Emergency Services, the clerk of the house concerned and all emergency interim successors of all such designations, removals and changes in order of succession. The clerk of each house shall enter all information regarding emergency interim successors for the house in its public journal at the beginning of each legislative session and shall enter all changes in membership or order of succession as soon as possible after their occurrence.
§15-7-8. Oath of emergency interim successors. Promptly after designation each emergency interim successor shall take the oath required for the legislator to whose powers and duties he is designated to succeed. No other oath shall be required.
§15-7-9. Duty of emergency interim successors. Each emergency interim successor shall keep himself generally informed as to the duties, procedures, practices and current business of the Legislature, and each legislator shall assist his emergency interim successors to keep themselves so informed.
§15-7-10. Place of legislative session in event of attack, etc. Whenever in the event of an attack, or upon findings that an attack may be imminent, the Governor deems the place of session then prescribed to be unsafe, he may change it to any place within or without the state which he deems safer and convenient.
§15-7-11. Assumption of powers and duties of legislator by emergency interim successor. If in the event of an attack a legislator is unavailable, his emergency interim successor highest in order of succession who is not unavailable shall, except for the power and duty to appoint emergency interim successors, exercise the powers and assume the duties of such legislator. An emergency interim successor shall exercise these powers and assume these duties until the incumbent legislator, and emergency interim successor higher in order of succession, or a legislator appointed or elected and legally qualified can act. Each house of the Legislature shall, in accordance with its own rules, determine who is entitled under the provisions of this article to exercise the powers and assume the duties of its members. All Constitutional and statutory provisions pertaining to ouster of a legislator shall be applicable to an emergency interim successor who is exercising the powers and assuming the duties of a legislator.
§15-7-12. Privileges, immunities and compensation of emergency interim successors. When an emergency interim successor exercises the powers and assumes the duties of a legislator, he shall be accorded the privileges and immunities, compensation, allowances and other perquisites of office to which a legislator is entitled. In the event of an attack, each emergency interim successor, whether or not called upon to exercise the powers and assume the duties of a legislator, shall be accorded the privileges and immunities of a legislator while traveling to and from a place of session and shall be compensated for his travel in the same manner and amount as a legislator. This section shall not in any way affect the privileges, immunities, compensation, allowances or other perquisites of office of an incumbent legislator.
§15-7-13. Separability of provisions. The various provisions of this article shall be construed as separable and severable, and should any of the provisions or parts thereof be construed or held unconstitutional or for any reason be invalid, the remaining provisions of this article shall not be thereby affected.
ARTICLE 8. WEST VIRGINIA SHERIFFS' BUREAU. §15-8-1. Repealed. Acts, 2015 Reg. Sess., Ch. 52.
§15-8-2. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-3. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-4. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-5. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-6. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-7. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-8. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-9. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-10. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-11. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
§15-8-12. Repealed. Acts, 2015 Reg. Sess., Ch. 53.
ARTICLE 9. GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION. §15-9-1. Governor's Committee on Crime, Delinquency and Correction established; Committee designated as state planning. (a) The Legislature hereby continues and reconstitutes the Governor's Committee on Crime, Delinquency and Correction. (b) The committee is composed of the following members: (1) The Secretary of the Department of Military Affairs and Public Safety, who shall serve as chair; (2) The chair of the juvenile justice subcommittee; (3) The chair of the community corrections subcommittee created by section two, article eleven-c, chapter sixty-two of this code; (4) The chair of the law-enforcement professional standards subcommittee created by section two, article twenty-nine, chapter thirty of this code; (5) The chair of the sexual assault forensic examination commission created by section one, article nine-b, chapter fifteen of this code; (6) The Superintendent of the State Board of Education; (7) A representative of a post-secondary education system in this state to be appointed by the Governor. This person shall be appointed on or before July 1, 2015, for an initial term of two years and then shall be appointed for subsequent terms of four years; (8) A representative of a faith-based organization to be appointed by the Governor. This person shall be appointed on or before July 1, 2015, for an initial term of two years and then shall be appointed for subsequent terms of four years; (9) The Administrative Director of the Supreme Court of Appeals who shall serve as an ex officio, nonvoting member; (10) The Executive Director of the West Virginia Prosecuting Attorneys Institute, established pursuant to section six, article four, chapter seven of this code; and (11) The Executive Director of the West Virginia Public Defender Services, established pursuant to section three, article twenty-one, chapter twenty-nine of this code. (c) After initial appointment, members appointed by the Governor pursuant to subsection (b) of this section shall serve for a term of four years from his or her appointment and are eligible for reappointment to that position. A person may not be appointed to the committee who is already a member of the committee by virtue of his or her title or occupation. (d) All members appointed to the committee shall serve until his or her successor has been duly appointed. (e) The Legislature hereby designates the Governor's Committee on Crime, Delinquency and Correction as the state planning agency required for participation by the State of West Virginia in programs provided by the Omnibus Crime Control and Safe Streets Act of 1968, as amended (42 United States Code, sections 3701 through 3796c, inclusive) and the Juvenile Justice and Delinquency Prevention Act of 1974, as amended (42 United States Code, section 5601). (f) The chair of the Governor's Committee on Crime, Delinquency and Corrections shall: (1) Appoint members and fill vacancies in the membership of the subcommittees in accordance with the statutory provisions governing such appointments. (2) Call meetings of the committee at least quarterly, and at such other times as he or she may direct, or upon request of a majority of the members of the committee. (g) The Director of the Division of Justice and Community Services shall serve as the Executive Director of the Governor's Committee on Crime, Delinquency and Correction and of its subcommittees and the Division of Justice and Community Services shall provide staff support.
§15-9-2. Facility inspection. The Governor's Committee on Crime, Delinquency and Correction or its designee shall annually visit and inspect jails, detention facilities, correctional facilities, facilities which may hold juveniles involuntarily or any other juvenile facility which may temporarily house juveniles on a voluntary or involuntary basis for the purpose of compliance with standards promulgated by the juvenile facilities standards commission, pursuant to section nine-a, article twenty, chapter thirty-one of this code and with the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, and compliance with the Prison Rape Elimination Act, pursuant to 42 U. S. C §15601, and related statutes or regulations.
§15-9-3. Ascertaining compliance with applicable standards in juvenile detention and correctional facilities. The Governor's Committee on Crime, Delinquency and Correction or its designee shall ascertain the compliance of juvenile detention and juvenile correctional facilities operated by or under contract with the Division of Juvenile Services, created pursuant to section two, article five-e, chapter forty-nine of this code, with standards for the structure, physical plant, operation and maintenance of the facilities, promulgated by the juvenile facility standards commission, pursuant to section nine-a, article twenty, chapter thirty-one of this code: Provided, That such review shall not include educational programs in such facilities.
§15-9-4. Criminal sentencing research. The Governor's committee on crime, delinquency and correction shall conduct comprehensive research on the state's criminal sanctioning process for adult offenders. The purpose of the research is to promote a fuller understanding of this state's criminal justice system, and shall include the review of issues of sentence length imposed, actual sentence length served, parole eligibility, parole revocation, determinate or indeterminate sentences, availability of alternatives to incarceration for certain offenses, and the respective roles that each of these and other criminal sanction issues may play in the increased demand for prison bed space. The committee shall report to the Governor and the Legislature on or before January 1, 2004, and at its discretion thereafter, the findings of its research and make any recommendations for modifications of criminal sentencing laws or procedures provided that no such recommendations or modifications shall become effective without further action of the Legislature.
§15-9-5. Authorization to adopt bylaws, policies and procedures, and to promulgate legislative rules. The Governor's Committee on Crime, Delinquency and Correction may adopt and modify bylaws, policies and procedures for the conduct of its meetings and the operation of the committee. The Governor's Committee on Crime, Delinquency and Correction may propose legislative rules, for legislative approval, pursuant to article three, chapter twenty-nine-a of this code, for purposes consistent with this act and any responsibilities assigned to it.
§15-9-6. Other responsibilities of the committee. (a) The committee shall receive reports from the subcommittees and direct those reports to be filed with the Governor and the Joint Committee on Government and Finance on or before September 30 of each year. (b) The committee may direct by vote its executive director, staff or any subcommittee to perform tasks related to the purposes of this article, including seeking funding for programs and grants, implementing criminal justice programs authorized by this code or rule, administering funding and grants, researching findings and recommendations, coordinating resources, and any other task or responsibility related to the purposes of this article.
ARTICLE 9A. DIVISION OF JUSTICE AND COMMUNITY SERVICES. §15-9A-1. Legislative findings. The West Virginia Division of Justice and Community Services is required to perform certain administrative and executive functions related to the improvement of the criminal justice and juvenile justice systems and various component agencies of state and local government with research and performance data, planning, funding and managing programs supported by federal and state-granted funds, and through its staff activities on behalf of the Governor's Committee on Crime, Delinquency and Correction, to provide regulatory oversight of law enforcement training and certification, community corrections programs established under the provisions of article eleven-c, chapter sixty-two of this code, the monitoring of facilities for compliance with juvenile detention facilities standards established by state and federal law, and the Sexual Assault Forensic Examination Commission created by article nine-b, chapter fifteen of this code. These administrative and executive staffing functions are necessary to provide for planning and coordination of services among the components of the criminal and juvenile justice systems, community corrections and sexual assault forensic examinations; program development and implementation; and administration of grant-funded programs emphasizing safety, prevention, coordination and the general enhancement of the criminal justice system as a whole, as well as such other federal grant-funded activities as the Governor may from time to time designate for administration by the division.
§15-9A-2. Division established; appointment of director. (a) The Division of Justice and Community Services is created. The purpose of the division is to provide executive and administrative support to the Governor’s Committee on Crime Delinquency and Correction in the coordination of planning for the criminal justice system, to administer federal and state grant programs assigned to it by the actions of the Governor or Legislature and to perform such other duties as the Legislature may from time to time assign to the division. The division is the designated staffing agency for the Governor’s Committee on Crime, Delinquency and Correction, and all of its subcommittees. The division may apply for grants and other funding from federal or state programs, foundations, corporations and organizations which funding is consistent with its responsibilities and the purposes assigned to it or the subcommittees it staffs. The Division of Justice and Community Services is hereby designated as the state administrative agency responsible for criminal justice and juvenile justice systems, and various component agencies of state and local government, for the planning and development of state programs and grants which may be funded by federal, state or other allocations in the areas of community corrections, law-enforcement training and compliance, sexual assault forensic examinations, victim services, human trafficking and juvenile justice. (b) The director of the division shall be named by the Governor to serve at his will and pleasure. (c) The director of the division shall take and subscribe to an oath of office in conformity with article IV, section five of the Constitution of the State of West Virginia.
§15-9A-3. Duties and powers of the director. (a) The director is responsible for the control and supervision of the division. (b) The director shall be charged with executive and administrative responsibility to: (i) Carry out the specific duties imposed on the Governor's Committee on Crime, Delinquency and Correction under the provisions of article nine, chapter fifteen; article twenty-nine, chapter thirty; and article eleven-c, chapter sixty-two of this code; (ii) maintain appropriate liaison with federal, state and local agencies and units of government, or combinations thereof, in order that all programs, projects and activities for strengthening and improving law enforcement and the administration of criminal justice may function effectively at all levels of government;(iii) seek sources of federal grant assistance programs that may benefit the state when authorized by the Governor and manage the dispersal of those funds through grant contracts to subgrantees in a manner consistent with state and federal law, and with sound and accountable management practices for the efficient and effective use of public funds; (iv) seek sources of program or grant assistance from foundations, corporations and organizations which funding is consistent with its responsibilities and the purposes assigned to the director, the Governor's Committee on Crime, Delinquency and Correction, and any of its subcommittees; and (v) serve as the Executive Director of the Governor's Committee on Crime, Delinquency and Correction and its subcommittees. (c) The director may: (1) Employ necessary personnel, assign them the duties necessary for the efficient management and operation of the division; (2) Work to bridge gaps between federal, state and local units of government, as well as private/nonprofit organizations and the general public; (3) Provide staff assistance in the coordination of all facets of the criminal and juvenile justice systems on behalf of the Governor's Committee on Crime Delinquency and Correction, including, but not limited to, law enforcement, jails, corrections, community corrections, juvenile justice, sexual assault forensic examinations and victim services; (4) Acquire criminal justice resources and coordinate the allocation of these resources to state, local and not-for-profit agencies; (5) Maintain a web-based database for all community correction programs; (6) Collect, compile and analyze crime and justice data in the state, generating statistical and analytical products for criminal justice professionals and policy makers to establish a basis for sound policy and practical considerations for the criminal justice system and make such recommendations for system improvement as may be warranted by such research and contract with other persons, firms, corporations or organizations to assist in these responsibilities; (7) Receive and disburse federal and state grants and funding received from foundations, corporations or other entities; (8) Propose legislative rules for legislative approval pursuant to article three, chapter twenty-nine-a of this code which may be necessary to fulfill the functions and responsibilities of the Division of Justice and Community Services and the Governor's Committee on Crime, Delinquency and Correction. (d) Nothing in this chapter shall be construed as authorizing the division to undertake direct operational responsibilities in law enforcement or the administration of criminal justice.
ARTICLE 10. COOPERATION BETWEEN LAW-ENFORCEMENT AGENCIES. §15-10-1. Short title. This article shall be known as the "West Virginia Law-Enforcement Mutual Assistance Act".
§15-10-2. Legislative findings. The Legislature hereby finds and declares that the commission of various crimes against the peace and dignity of the State of West Virginia quite often crosses county and municipal boundaries, affecting the citizenry of this state and making difficult the tasks of detecting and preventing crime by law-enforcement agencies due to restrictions imposed by municipal and county boundaries; that many county and municipal law-enforcement agencies do not, by themselves, have sufficient resources in personnel, equipment and particular areas of expertise to adequately prevent or detect those crimes or criminal activities which cross such county and municipal boundaries; that it is in the best interest of the citizens of this state for lawenforcement agencies to share resources and to provide mutual assistance to each other; and that, therefore, the Legislature finds and declares that the various law-enforcement agencies within the state should be permitted and empowered to share resources and provide mutual assistance for the prevention and detection of crime.
§15-10-3. Definitions. For purposes of this article only, and unless a different meaning plainly is required: (1) "Criminal justice enforcement personnel" means those persons within the state criminal justice system who are actually employed as members of the State Police, members of the Division of Protective Services, natural resources police officers, chiefs of police and police of incorporated municipalities, and county sheriffs and their deputies and whose primary duties are the investigation of crime and the apprehension of criminals. (2) "Head of a law-enforcement agency" means the Superintendent of the State Police, the Director of the Division of Protective Services, the chief natural resources police officer of the Division of Natural Resources, a chief of police of an incorporated municipality, a county sheriff or the Director of the Division of Forestry. (3) "State or local law-enforcement officer" means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof, other than parking ordinances, and includes persons employed as campus police officers at state institutions of higher education in accordance with the provisions of section five, article four, chapter eighteen-b of this code, although those institutions may not be considered lawenforcement agencies. (4) "Head of campus police" means the superintendent or administrative head of state or local law-enforcement officers employed as campus police officers at state institutions of higher education in accordance with the provisions of section five, article four, chapter eighteen-b of this code.
§15-10-4. Cooperation between law-enforcement agencies and other groups of state or local law-enforcement officers. (a) The head of any law-enforcement agency, or the head of any campus police, as those terms are defined in section three of this article, may temporarily provide assistance and cooperation to another agency of the state criminal justice system or to a federal law-enforcement agency in investigating crimes or possible criminal activity if requested to do so in writing by the head of another law-enforcement agency or federal law-enforcement agency. Such assistance may also be provided upon the request of the head of the law-enforcement agency or federal law-enforcement agency without first being reduced to writing in emergency situations involving the imminent risk of loss of life or serious bodily injury. The assistance may include, but is not limited to, entering into a multijurisdictional task force agreement to integrate federal, state, county and municipal law-enforcement agencies or other groups of state or local law-enforcement officers, or any combination thereof, for the purpose of enhancing interagency coordination, intelligence gathering, facilitating multijurisdictional investigations, providing criminal justice enforcement personnel of the law-enforcement agency to work temporarily with personnel of another agency, including in an undercover capacity, and making available equipment, training, technical assistance and information systems for the more efficient investigation, apprehension and adjudication of persons who violate the criminal laws of this state or the United States and to assist the victims of such crimes. When providing the assistance under this article, a head of a law-enforcement agency shall comply with all applicable statutes, ordinances, rules, policies or guidelines officially adopted by the state or the governing body of the city or county by which he or she is employed and any conditions or restrictions included therein. (b) While temporarily assigned to work with another law-enforcement agency or agencies, criminal justice enforcement personnel and other state and local law-enforcement officers shall have the same jurisdiction, powers, privileges and immunities, including those relating to the defense of civil actions, as such criminal justice enforcement personnel would enjoy if actually employed by the agency to which they are assigned, in addition to any corresponding or varying jurisdiction, powers, privileges and immunities conferred by virtue of their continued employment with the assisting agency. (c) While assigned to another agency or to a multijurisdictional task force, criminal justice enforcement personnel and other state and local law-enforcement officers shall be subject to the lawful operational commands of the superior officers of the agency or task force to which they are assigned, but for personnel and administrative purposes, including compensation, they shall remain under the control of the assisting agency. These assigned personnel shall continue to be covered by all employee rights and benefits provided by the assisting agency, including workers' compensation, to the same extent as though such personnel were functioning within the normal scope of their duties. (d) No request or agreement between the heads of law-enforcement agencies, or the heads of campus police, made or entered into pursuant to this article shall remain in force or effect until a copy of said request or agreement is filed with the office of the circuit clerk of the county or counties in which the law-enforcement agencies, or the campus police, involved operate. Agreements made pursuant to this article shall remain in effect unless and until the agreement is changed or withdrawn in writing by the head of one of the law-enforcement agencies. Upon filing, the requests or agreements may be sealed, subject to disclosure pursuant to an order of a circuit court directing disclosure for good cause. Nothing in this article shall be construed to limit the authority of the head of a law-enforcement agency or the head of campus police to withdraw from any agreement at any time. (e) Nothing contained in this article shall be construed so as to grant, increase, decrease or in any manner affect the civil service protection or the applicability of civil service laws as to any criminal justice enforcement personnel, or as to any state or local law-enforcement officer or agency operating under the authority of this article, nor shall this article in any way reduce or increase the jurisdiction or authority of any criminal justice enforcement personnel, or of any state or local law-enforcement officer or agency, except as specifically provided herein. (f) Nothing contained in this article shall be construed so as to authorize the permanent consolidation or merger or the elimination of operations of participating federal, state, county and municipal law-enforcement agencies, or other groups of state and local law-enforcement officers, or campus police.
§15-10-5. Federal officers' peace-keeping authority. (a) Notwithstanding any provision of this code to the contrary, any person who is employed by the United States government as a federal law-enforcement officer and is listed in subsection (b) of this section, has the same authority to enforce the laws of this state, except state or local traffic laws or parking ordinances, as that authority granted to state or local lawenforcement officers, if one or more of the following circumstances exist: (1) The federal law-enforcement officer is requested to provide temporary assistance by the head of a state or local law-enforcement agency or the designee of the head of the agency and that request is within the state or local law-enforcement agency's scope of authority and jurisdiction and is in writing: Provided, That the request does not need to be in writing if an emergency situation exists involving the imminent risk of loss of life or serious bodily injury; (2) The federal law-enforcement officer is requested by a state or local law-enforcement officer to provide the officer temporary assistance when the state or local law-enforcement officer is acting within the scope of the officer's authority and jurisdiction and where exigent circumstances exist; or (3) A felony is committed in the federal law-enforcement officer's presence or under circumstances indicating a felony has just occurred. (b) This section applies to the following persons who are employed as full-time federal law-enforcement officers by the United States government and who are authorized to carry firearms while performing their duties: (1) Federal Bureau of Investigation special agents; (2) Drug Enforcement Administration special agents; (3) United States Marshal's Service marshals and deputy marshals; (4) United States postal service inspectors; (5) Internal revenue service special agents; (6) United States secret service special agents; (7) Bureau of alcohol, tobacco, and firearms special agents; (8) Police officers employed pursuant to 40 U.S.C. §§318 and 490 at the federal bureau of investigation's criminal justice information services division facility located within this state; (9) Law enforcement commissioned rangers of the national park service; (10) Department of Veterans Affairs Police and Department of Veterans Affairs special investigators; (11) Office of Inspector General special agents; and (12) Federal Air Marshals with the Federal Air Marshal Service. (c) Any person acting under the authority granted pursuant to this section: (1) Has the same authority and is subject to the same exemptions and exceptions to this code as a state or local law-enforcement officer; (2) Is not an officer, employee, or agent of any state or local law-enforcement agency; (3) May not initiate or conduct an independent investigation into an alleged violation of any provision of this code except to the extent necessary to preserve evidence or testimony at risk of loss immediately following an occurrence described in subdivision (3), subsection (a) of this section; (4) Is subject to 28 U.S.C. §1346, the Federal Tort Claims Act; and (5) Has the same immunities from liability as a state or local law-enforcement officer.
§15-10-6. Transportation of out-of-state prisoners; authority of foreign law-enforcement officers. (a) Duly authorized law enforcement officers of the United States, the District of Columbia and other states or political subdivisions thereof who are transporting prisoners through this state, delivering prisoners to this state or taking custody of a person in this state for transport to another jurisdiction are deemed to have lawful custody of said prisoner while in this state. (b) Given that duly authorized officers of other jurisdictions often have a need to travel through or to this state with prisoners for short durations of time, such as for medical treatment, the purpose of this section is to clarify the authority and jurisdiction of those officers of the United States, the District of Columbia and other states while having custody of a prisoner during the time they are in West Virginia.
ARTICLE 10A. LAW-ENFORCEMENT REEMPLOYMENT ACT. §15-10A-1. Legislative findings. The Legislature finds: (1) That West Virginia law enforcement is currently suffering from an unacceptably high number of vacant law-enforcement positions because of military service obligations, and that given the time factors and expense associated with the hiring and training of personnel with no prior law-enforcement experience, it is in the interest of the state to reemploy retired lawenforcement officers in order to temporarily fill only the vacant positions of those law-enforcement officers called to active military duty; (2) That no pension rights of any kind shall accrue or attach pursuant to reemployment under this article; and (3) That a law-enforcement agency who hires a retired law-enforcement officer shall bear no responsibility for medical payments resulting from work-related injuries or illnesses of persons hired pursuant to this article, other than those commonly associated with state employees covered by workers' compensation.
§15-10A-2. Reemployment of law-enforcement officers. (a) Notwithstanding any provision of this code to the contrary, any honorably retired law-enforcement officer may, at the discretion of the head of a law-enforcement agency, be reemployed subject to the provisions of this article: Provided, That a retired law-enforcement officer employed pursuant to this article must be certified pursuant to article twenty-nine, chapter thirty. (b) Any person reemployed pursuant to the provisions of this article shall: (1) Receive the same compensation as a regularly enlisted officer of the same rank; (2) Receive credit for all years of service accrued prior to their retirement, as well as service rendered after the date of their reemployment; (3) Exercise the same authority as a regularly enlisted officer of the law-enforcement agency; (4) Wear the same uniform and insignia; (5) Be subject to the same oath; (6) Execute the same bond; and (7) Exercise the same powers and be subject to the same limitations as a regularly enlisted officer of the law-enforcement agency. (c) A person reemployed pursuant to the provisions of this article is ineligible for promotion or reclassification of any type nor eligible for appointment to a temporary rank. (d) A person reemployed pursuant to the provisions of this article may be employed for a period not to exceed two years from the date on which he or she is hired. (e) As used in this article: (1) "Law-enforcement officer" or "officer" means: (A) Any sheriff and any deputy sheriff of any county; (B) any member of a police department in any municipality as defined in section two, article one, chapter eight of this code; and (C) any natural resources police officer of the Division of Natural Resources; and (2) "Head of a law-enforcement agency" means the chief of police of an incorporated municipality; a county sheriff, or the chief natural resources police officer of the Division of Natural Resources.
§15-10A-3. Examination requirements. A retired law-enforcement officer applying for reemployment under this article is required to pass mental and physical examinations as required, and meet such other requirements, as may be provided in rules promulgated by the head of the applicable law-enforcement agency.
§15-10A-4. Coverage for illness or injury. (a) Notwithstanding any provision of this code to the contrary, the head of the law-enforcement agency shall make provisions for coverage of personnel employed pursuant to this article by the workers' compensation division and Bureau of Employment Programs. In the event an individual reemployed pursuant to this article sustains an illness or injury which is work related in origin, any cost associated with the treatment must be defrayed in this manner. (b) In the event a work-related illness or injury renders an individual employed pursuant to the provisions of this article permanently physically or mentally disabled, the applicable law-enforcement agencies' disability coverage through the workers' compensation division shall apply, and the individual's existing pension shall be recalculated as though the disabling event had occurred coincident with the individual's original retirement. Any change in benefits resulting from this recalculation may not be retroactive in nature. (c) The provisions of this section do not apply in the event a person employed pursuant to this article is disabled because of some cause or event which is determined not to be work related.
§15-10A-5. Ineligibility for contributions to pensions. Any person reemployed pursuant to this article is not eligible to contribute to any pension plan administered by the Consolidated Public Retirement Board, nor may he or she establish or accrue any new pension eligibility as a result of such reemployment.
§15-10A-6. Employment status; civil service; and retirement benefits. (a) Notwithstanding any provision of this code to the contrary, any person reemployed pursuant to this article shall serve at the will and pleasure of the head of the law-enforcement agency, and is subject to termination without cause. (b) Any person reemployed pursuant to this article may not be included in the classified service of the civil service system. (c) Notwithstanding any provision of this code to the contrary, compensation paid to any person reemployed pursuant to this article shall be in addition to any public employees insurance act retirement benefits, or any other retirement payments or pension benefits which he or she is already entitled to receive or is receiving.
ARTICLE 11. PAYMENT OF FUNERAL EXPENSES. §15-11-1. Law-enforcement, safety and emergency worker funeral expense fund created. There is created within the State Treasury a special fund known as the "law-enforcement, safety and emergency worker funeral expense payment fund", into which there shall be deposited such moneys as from time to time may be appropriated by the Legislature or received from other sources as may be donated or otherwise provided for the fund. The fund shall be administered by the secretary of military affairs and public safety for the sole purpose of effecting the provisions of this article.
§15-11-2. Payment of funeral expenses of law-enforcement, safety and emergency workers killed in the line of duty. (a) The Secretary of Military Affairs and Public Safety shall, upon written request, direct payment from the fund in the form of a draft as provided in this article up to and including an amount not exceeding $8,000 for the reasonable funeral expenses, including burial expenses, of a law-enforcement, safety or emergency worker killed on or after January 1, 1999, while carrying out official duties: Provided, That no funds shall be expended for any funeral expense that is otherwise payable pursuant to the provisions of article four, chapter twenty-three of this code, as amended, or other benefit programs established by a provision of this code which does not involve employee participation: Provided, however, That where other funds for funeral expenses are provided pursuant to the laws of this state, from whatever source, which amount to less than $8,000, funds provided by the provisions of this section shall be expended so as to ensure that at least $8,000 is available for reasonable funeral expenses. The secretary shall direct payment of the funeral expenses upon written request of an employer or head of a volunteer organization, as is appropriate pursuant to this article, certifying that the individual for whom funeral expenses are requested was killed while performing official duties. (b) The secretary shall supply the draft in the name of the person contracting for the funeral services and, if known, the service provider to the employer or agency head making the request who shall tender the draft to the person who contracted for the services. (c) For the purposes of this section, "law-enforcement, safety or emergency worker" means: (1) Any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality of the state, other than parking ordinances, and including those persons employed as security officers at municipal, county, regional or state offices, authorities or institutions, although their employers may not be public law-enforcement agencies, employed by the Hatfield-McCoy Regional Recreation Authority and members of the West Virginia National Guard while engaged in active duty service: Provided, That this section does not apply to those persons employed by private security firms or agencies; (2) Any state, regional, county or municipal correctional employee; (3) Any firefighter employed by the state or any political subdivision of the state and any volunteer firefighter performing as a member of a volunteer fire department; (4) Any "emergency medical services personnel", as defined in section three, article four-c, chapter sixteen of this code, employed by or volunteering for any state agency or institution or political subdivision of the state; or (5) Any probation officer appointed under the provisions of either section five, article twelve, chapter sixty-two of this code or section fifteen, article five, chapter forty-nine of this code.
ARTICLE 12. SEX OFFENDER REGISTRATION ACT. §15-12-1. Short title. This article may be cited as the "Sex Offender Registration Act."
§15-12-1a. Intent and findings. (a) It is the intent of this article to assist law-enforcement agencies' efforts to protect the public from sex offenders by requiring sex offenders to register with the State Police detachment in the county where he or she shall reside and by making certain information about sex offenders available to the public as provided in this article. It is not the intent of the Legislature that the information be used to inflict retribution or additional punishment on any person convicted of any offense requiring registration under this article. This article is intended to be regulatory in nature and not penal. (b) The Legislature finds and declares that there is a compelling and necessary public interest that the public have information concerning persons convicted of sexual offenses in order to allow members of the public to adequately protect themselves and their children from these persons. (c) The Legislature also finds and declares that persons required to register as sex offenders pursuant to this article have a reduced expectation of privacy because of the state's interest in public safety.
§15-12-2. Registration. (a) The provisions of this article apply both retroactively and prospectively. (b) Any person who has been convicted of an offense or an attempted offense or has been found not guilty by reason of mental illness, mental retardation or addiction of an offense under any of the following provisions of chapter sixty-one of this code or under a statutory provision of another state, the United States Code or the Uniform Code of Military Justice which requires proof of the same essential elements shall register as set forth in subsection (d) of this section and according to the internal management rules promulgated by the superintendent under authority of section twenty-five, article two of this chapter: (1) Article eight-a; (2) Article eight-b, including the provisions of former section six of said article, relating to the offense of sexual assault of a spouse, which was repealed by an Act of the Legislature during the year 2000 legislative session; (3) Article eight-c; (4) Sections five and six, article eight-d; (5) Section fourteen, article two; (6) Sections six, seven, twelve and thirteen, article eight; (7) Section fourteen-b, article three-c, as it relates to violations of those provisions of chapter sixty-one listed in this subsection; or (8) Sections two, five and six, article fourteen; Provided, That as to section two of said article only those violations involving human trafficking for purposes of sexual servitude require registration pursuant to this subdivision. (c) Any person who has been convicted of a criminal offense and the sentencing judge made a written finding that the offense was sexually motivated shall also register as set forth in this article. (d) Persons required to register under the provisions of this article shall register in person at the West Virginia State Police detachment responsible for covering the county of his or her residence, and in doing so, provide or cooperate in providing, at a minimum, the following when registering: (1) The full name of the registrant, including any aliases, nicknames or other names used by the registrant; (2) The address where the registrant intends to reside or resides at the time of registration, the address of any habitable real property owned or leased by the registrant that he or she regularly visits: Provided, That a post office box may not be provided in lieu of a physical residential address, the name and address of the registrant’s employer or place of occupation at the time of registration, the names and addresses of any anticipated future employers or places of occupation, the name and address of any school or training facility the registrant is attending at the time of registration and the names and addresses of any schools or training facilities the registrant expects to attend; (3) The registrant’s Social Security number; (4) A full-face photograph of the registrant at the time of registration; (5) A brief description of the crime or crimes for which the registrant was convicted; (6) Fingerprints and palm prints; (7) Information related to any motor vehicle, trailer or motor home owned or regularly operated by a registrant, including vehicle make, model, color and license plate number: Provided, That for the purposes of this article, the term “trailer” shall mean travel trailer, fold-down camping trailer and house trailer as those terms are defined in section one, article one, chapter seventeen-a of this code; (8) Information relating to any Internet accounts the registrant has and the screen names, user names or aliases the registrant uses on the Internet; and (9) Information related to any telephone or electronic paging device numbers that the registrant has or uses, including, but not limited to, residential, work and mobile telephone numbers. (e) (1) On the date that any person convicted or found not guilty by reason of mental illness, mental retardation or addiction of any of the crimes listed in subsection (b) of this section, hereinafter referred to as a “qualifying offense”, including those persons who are continuing under some post-conviction supervisory status, are released, granted probation or a suspended sentence, released on parole, probation, home detention, work release, conditional release or any other release from confinement, the Commissioner of Corrections, regional jail administrator, city official or sheriff operating a jail or Secretary of the Department of Health and Human Resources who releases the person and any parole or probation officer who releases the person or supervises the person following the release, shall obtain all information required by subsection (d) of this section prior to the release of the person, inform the person of his or her duty to register and send written notice of the release of the person to the State Police within three business days of receiving the information. The notice must include the information required by said subsection. Any person having a duty to register for a qualifying offense shall register upon conviction, unless that person is confined or incarcerated, in which case he or she shall register within three business days of release, transfer or other change in disposition status. Any person currently registered who is incarcerated for any offense shall reregister within three business days of his or her release. (2) Notwithstanding any provision of this article to the contrary, a court of this State shall, upon presiding over a criminal matter resulting in conviction or a finding of not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense, cause, within seventy-two hours of entry of the commitment or sentencing order, the transmittal to the sex offender registry for inclusion in the registry all information required for registration by a registrant as well as the following nonidentifying information regarding the victim or victims: (A) His or her sex; (B) His or her age at the time of the offense; and (C) The relationship between the victim and the perpetrator. The provisions of this paragraph do not relieve a person required to register pursuant to this section from complying with any provision of this article. (f) For any person determined to be a sexually violent predator, the notice required by subsection (d) of this section must also include: (1) Identifying factors, including physical characteristics; (2) History of the offense; and (3) Documentation of any treatment received for the mental abnormality or personality disorder. (g) At the time the person is convicted or found not guilty by reason of mental illness, mental retardation or addiction in a court of this state of the crimes set forth in subsection (b) of this section, the person shall sign in open court a statement acknowledging that he or she understands the requirements imposed by this article. The court shall inform the person so convicted of the requirements to register imposed by this article and shall further satisfy itself by interrogation of the defendant or his or her counsel that the defendant has received notice of the provisions of this article and that the defendant understands the provisions. The statement, when signed and witnessed, constitutes prima facie evidence that the person had knowledge of the requirements of this article. Upon completion of the statement, the court shall provide a copy to the registry. Persons who have not signed a statement under the provisions of this subsection and who are subject to the registration requirements of this article must be informed of the requirement by the State Police whenever the State Police obtain information that the person is subject to registration requirements. (h) The State Police shall maintain a central registry of all persons who register under this article and shall release information only as provided in this article. The information required to be made public by the State Police by subdivision (2), subsection (b), section five of this article is to be accessible through the Internet. No information relating to telephone or electronic paging device numbers a registrant has or uses may be released through the Internet. (i) For the purpose of this article, “sexually violent offense” means: (1) Sexual assault in the first degree as set forth in section three, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction; (2) Sexual assault in the second degree as set forth in section four, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction; (3) Sexual assault of a spouse as set forth in the former provisions of section six, article eight-b, chapter sixty-one of this code, which was repealed by an Act of the Legislature during the 2000 legislative session, or of a similar provision in another state, federal or military jurisdiction; (4) Sexual abuse in the first degree as set forth in section seven, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction. (j) For purposes of this article, the term “sexually motivated” means that one of the purposes for which a person committed the crime was for any person’s sexual gratification. (k) For purposes of this article, the term “sexually violent predator” means a person who has been convicted or found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. (l) For purposes of this article, the term “mental abnormality” means a congenital or acquired condition of a person, that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons. (m) For purposes of this article, the term “predatory act” means an act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization. (n) For the purposes of this article, the term “business days” means days exclusive of Saturdays, Sundays and legal holidays as defined in section one, article two, chapter two of this code.
§15-12-2a. Court determination of sexually violent predator. (a) The circuit court that has sentenced a person for the commission of a sexually violent offense or that has entered a judgment of acquittal of a charge of committing a sexually violent offense in which the defendant has been found not guilty by reason of mental illness, mental retardation or addiction shall make a determination whether: (1) A person is a sexually violent predator; or (2) A person is not a sexually violent predator. (b) A hearing to make a determination as provided in subsection (a) of this section is a summary proceeding, triable before the court without a jury. (c) A proceeding seeking to establish that a person is a sexually violent predator is initiated by the filing of a written pleading by the prosecuting attorney. The pleading shall describe the record of the judgment of the court on the person's conviction or finding of not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and shall set forth a short and plain statement of the prosecutor's claim that the person suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. (d) Prior to making a determination pursuant to the provisions of this section, the sentencing court may order a psychiatric or other clinical examination and, after examination, may further order a period of observation in an appropriate facility within this state designated by the court after consultation with the Director of the Division of Health. (e) Prior to making a determination pursuant to the provisions of this section, the sentencing court shall request and receive a report by the board established pursuant to section twob of this article. The report shall set forth the findings and recommendation of the board on the issue of whether the person is a sexually violent predator. (f) At a hearing to determine whether a person is a sexually violent predator, the person shall be present and shall have the right to be represented by counsel, introduce evidence and cross-examine witnesses. The offender shall have access to a summary of the medical evidence to be presented by the state. The offender shall have the right to an examination by an independent expert of his or her choice and testimony from the expert as a medical witness on his or her behalf. At the termination of the hearing the court shall make a finding of fact upon a preponderance of the evidence as to whether the person is a sexually violent predator. (g) If a person is determined by the circuit court to be a sexually violent predator, the clerk of the court shall forward a copy of the order to the State Police in the manner promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
§15-12-2b. Creation of sex offender registration advisory board. (a) There is hereby created within the Department of Military Affairs and Public Safety a sex offender registration advisory board consisting of a minimum of five members appointed by the secretary of the Department of Military Affairs and Public Safety. At least two of the members shall be experts in the field of the behavior and treatment of sexual offenders, and each shall be a physician, psychologist or social worker in the employ of this state appointed by the secretary in consultation with the director of the division of health. The remaining members shall be victims rights advocates and representatives of law-enforcement agencies. Members of the board shall be reimbursed their reasonable expenses pursuant to the rules promulgated by the Department of Administration for the reimbursement of expenses of state officials and employees and shall receive no other compensation for their services. The board shall utilize the staff of the division or office within the Department of Military Affairs and Public Safety designated by the secretary thereof in carrying out its duties and responsibilities as set forth in this article. (b) The board shall assist the circuit courts of this state in determining whether persons convicted of sexually violent offenses are sexually violent predators.
§15-12-3. Change in registry information. When any person required to register under this article changes his or her residence, address, place of employment or occupation, motor vehicle, trailer or motor home information required by section two of this article, or school or training facility which he or she is attending, or when any of the other information required by this article changes, he or she shall, within ten business days, inform the West Virginia State Police of the changes in the manner prescribed by the Superintendent of State Police in procedural rules promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided, That when any person required to register under this article changes his or her residence, place of employment or occupation or school or training facility he or she is attending from one county of this state to another county of this state, he or she shall inform the West Virginia State Police detachment responsible for covering the county of his or her residence within ten business days of the change in the manner prescribed by the superintendent in procedural rules promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
§15-12-3a. Petition for removal of sexually violent predator designation. A proceeding seeking to remove a person's designation as a sexually violent predator may be initiated by the filing of a petition by the person so designated in the original sentencing court. The petition shall set forth that the underlying qualifying conviction has been reversed or vacated. Upon receipt of proof that no qualifying conviction exists, the court shall enter an order directing the removal of the designation.
§15-12-4. Duration. (a) A person required to register under the terms of this article shall continue to comply with this section, except during ensuing periods of incarceration or confinement, until: (1) Ten years have elapsed since the person was released from prison, jail or a mental health facility or ten years have elapsed since the person was placed on probation, parole or supervised or conditional release. The ten-year registration period shall not be reduced by the sex offender's release from probation, parole or supervised or conditional release; or (2) For the life of that person if that person: (A) Has one or more prior convictions or has previously been found not guilty by reason of mental illness, mental retardation or addiction for any qualifying offense referred to in this article; or (B) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, and upon motion of the prosecuting attorney, the court finds by clear and convincing evidence, that the qualifying offense involved multiple victims or multiple violations of the qualifying offense; or (C) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense; or (D) has been determined pursuant to section two-a of this article to be a sexually violent predator; or (E) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, involving a minor. (b) A person whose conviction is overturned for the offense which required them to register under this article shall, upon petition to the court, have their name removed from the registry.
§15-12-5. Distribution and disclosure of information; community information programs by prosecuting attorney and State Police; petition to circuit court. (a) Within five business days after receiving any notification as described in this article, the State Police shall distribute a copy of the notification statement to: (1) The supervisor of each county and municipal law-enforcement office and any campus police department in the city and county where the registrant resides, owns or leases habitable real property that he or she regularly visits, is employed or attends school or a training facility; (2) The county superintendent of schools in each county where the registrant resides, owns or leases habitable real property that he or she regularly visits, is employed or attends school or a training facility; (3) The child protective services office charged with investigating allegations of child abuse or neglect in the county where the registrant resides, owns or leases habitable real property that he or she regularly visits, is employed or attends school or a training facility; (4) All community organizations or religious organizations which regularly provide services to youths in the county where the registrant resides, owns or leases habitable real property that he or she regularly visits, is employed or attends school or a training facility; (5) Individuals and organizations which provide day care services for youths or day care, residential or respite care, or other supportive services for mentally or physically incapacitated or infirm persons in the county where the registrant resides, owns or leases habitable real property that he or she regularly visits, is employed or attends school or a training facility; and (6) The Federal Bureau of Investigation (FBI). (7) The State Police detachments in the county of the offender's occupation, employment, owned or leased habitable real property and school or training. (b) Information concerning persons whose names are contained in the sex offender registry is not subject to the requirements of the West Virginia Freedom of Information Act, as set forth in chapter twenty-nine-b of this code, and may be disclosed and disseminated only as otherwise provided in this article and as follows: (1) When a person has been determined to be a sexually violent predator under the terms of section two-a of this article, the State Police shall notify the prosecuting attorney of the county in which the person resides, owns or leases habitable real property that he or she regularly visits, is employed or attends a school or training facility. The prosecuting attorney shall cooperate with the State Police in conducting a community notification program which is to include publication of the offender's name, photograph, place of residence, location of regularly visited habitable real property owned or leased by the offender, county of employment and place at which the offender attends school or a training facility, as well as information concerning the legal rights and obligations of both the offender and the community. Information relating to the victim of an offense requiring registration may not be released to the public except to the extent the prosecuting attorney and the State Police consider it necessary to best educate the public as to the nature of sexual offenses: Provided, That no victim's name may be released in any public notification pursuant to this subsection. No information relating to telephone or electronic paging device numbers a registrant has or uses may be released to the public with this notification program. The prosecuting attorney and State Police may conduct a community notification program in the county where a person who is required to register for life under the terms of subdivision (2), subsection (a), section four of this article resides, owns or leases habitable real property that he or she regularly visits, is employed or attends a school or training facility. Community notification may be repeated when determined to be appropriate by the prosecuting attorney; (2) The State Police shall maintain and make available to the public at least quarterly the list of all persons who are required to register for life according to the terms of subdivision (2), subsection (a), section four of this article. No information concerning the identity of a victim of an offense requiring registration or telephone or electronic paging device numbers a registrant has or uses may be released with this list. The method of publication and access to this list are to be determined by the superintendent; and (3) A resident of a county may petition the circuit court for an order requiring the State Police to release information about persons that reside or own or lease habitable real property that the persons regularly visit in that county and who are required to register under section two of this article. The court shall determine whether information contained on the list is relevant to public safety and whether its relevance outweighs the importance of confidentiality. If the court orders information to be released, it may further order limitations upon secondary dissemination by the resident seeking the information. In no event may information concerning the identity of a victim of an offense requiring registration or information relating to telephone or electronic paging device numbers a registrant has or uses be released. (c) The State Police may furnish information and documentation required in connection with the registration to authorized law-enforcement, campus police and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the State of West Virginia upon proper request stating that the records will be used solely for law-enforcement-related purposes. The State Police may disclose information collected under this article to federal, state and local governmental agencies responsible for conducting preemployment checks. The State Police also may disclose information collected under this article to the Division of Motor Vehicles pursuant to the provisions of section three, article two, chapter seventeen-b of this code. (d) An elected public official, public employee or public agency is immune from civil liability for damages arising out of any action relating to the provisions of this section except when the official, employee or agency acted with gross negligence or in bad faith.
§15-12-6. Duties of institution officials. In addition to the duties imposed by sections two and four of this article, the official in charge of the place of confinement shall inform any person required to register under this article, before parole or release, of the duty to register. Further, the official shall obtain the full address of the person and a statement signed by the person acknowledging that the person has been informed of his or her duty to register.
§15-12-6a. Release of information to the Sex Offender Registry. Upon the request of the West Virginia State Police, agencies in possession of records produced in conjunction with investigation, prosecution, adjudication, incarceration, probation, parole or presentence review of a sex offender and any other records produced in conjunction with a sex offense shall provide those records to the State Police.
§15-12-7. Information shall be released when person moves out of state. A person who is required to register pursuant to the provisions of this article, who intends to move to another state or country shall at least ten business days prior to such move notify the State Police of his or her intent to move and of the location to which he or she intends to move, or if that person is incarcerated he or she shall notify correctional officials of his or her intent to reside in some other state or country upon his or her release, and of the location to which he or she intends to move. Upon such notification, the State Police shall notify lawenforcement officials of the jurisdiction where the person indicates he or she intends to reside of the information provided by the person under the provisions of this article.
§15-12-8. Failure to register or provide notice of registration changes; penalty; penalty for aiding and abetting. (a) Each time a person has a change in any of the registration information as required by this article and knowingly fails to register the change or changes, each failure to register each separate item of information changed shall constitute a separate offense under this section. (b) Except as provided in this section, any person required to register for ten years pursuant to subdivision (1), subsection (a), section four of this article who knowingly provides materially false information or who refuses to provide accurate information when so required by the terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any required information as required by this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $10,000 or confined in jail not more than one year, or both. Any person convicted of a second offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person convicted of a third or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than five nor more than twenty-five years. (c) Any person required to register for life pursuant to this article who knowingly provides materially false information or who refuses to provide accurate information when so required by the terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any required information as required by this article, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person convicted of a second or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten nor more than twenty-five years. (d) In addition to any other penalty specified for failure to register under this article, any person under the supervision of a probation officer, parole officer or any other sanction short of confinement in jail or prison who knowingly refuses to register or who knowingly fails to provide a change in information as required by this article shall be subject to immediate revocation of probation or parole and returned to confinement for the remainder of any suspended or unserved portion of his or her original sentence. (e) Notwithstanding the provisions of subsection (c) of this section, any person required to register as a sexually violent predator pursuant to this article who knowingly provides materially false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in any required information as required by this article is guilty of a felony and, upon conviction thereof, shall, for a first offense, be confined in a state correctional facility not less than two nor more than ten years and for a second or subsequent offense, is guilty of a felony and, shall be confined in a state correctional facility not less than fifteen nor more than thirtyfive years. (f) Any person who knows or who has reason to know that a sex offender is not complying, or has not complied, with the requirements of this section and who, with the intent to assist the sex offender in eluding a law-enforcement agency that is seeking to find the sex offender to question the sex offender about, or to arrest the sex offender for, his or her noncompliance with the requirements of this section: (1) Withholds information from, the law-enforcement agency about the sex offender's noncompliance with the requirements of this section and, if known, the whereabouts of the sex offender; or (2) Harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the sex offender; or (3) Conceals or attempts to conceal, or assists another person in concealing or attempting to conceal, the sex offender; or (4) Provides information to the law-enforcement agency regarding the sex offender which the person knows to be false information is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $10,000 or confined in jail not more than one year, or both: Provided, That where the person assists or seeks to assist a sex offender whose violation of this section would constitute a felony, the person shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years.
§15-12-9. Registration of out-of-state offenders. (a) When any probation or parole officer accepts supervision of and has legal authority over any person required to register under this article from another state under the terms and conditions of the uniform act for out-of-state parolee supervision established under article six, chapter twenty-eight of this code, the officer shall give the person written notice of the registration requirements of this section and obtain a signed statement from the person required to register acknowledging the receipt of the notice. The officer shall obtain and submit to the State Police the information required in subsection (d), section two of this article. (b) Any person: (1) Who resides in another state or federal or military jurisdiction; (2) Who is employed, carries on a vocation, is a student in this state, is a visitor to this state for a period of more than fifteen continuous days or owns or leases habitable real property in this state that he or she regularly visits; and (3) Who is required by the state, federal or military jurisdiction in which he or she resides to register in that state, federal or military jurisdiction as a sex offender, or has been convicted of a violation in that state, federal or military jurisdiction that is similar to a violation in this article requiring registration as a sex offender in this state, shall register in this state and otherwise comply with the provisions of this article. (c) Any person changing residence to this state from another state or federal or military jurisdiction who is required to register as a sex offender under the laws of that state or federal or military jurisdiction shall register as a sex offender in this state.
§15-12-10. Address and online information verification. All registrants, including those for whom there has been no change in registration information since their initial registration or previous address verification, must report, in the month of their birth, or in the case of a sexually violent predator in the months of January, April, July and October, to the State Police detachment responsible for covering their county of registration and must respond to all verification inquiries and informational requests, including, but not limited to, requests for online information made by the State Police pursuant to this section. The State Police shall verify addresses of those persons registered as sexually violent predators every ninety days and all other registered persons once a year. As used in this section, the term "online information" shall mean all information required by subdivision (8), subsection (d), section two, article twelve, chapter fifteen of this code. The State Police may require registrants to periodically submit to new fingerprints and photographs as part of the verification process. The method of verification shall be in accordance with internal management rules pertaining thereto promulgated by the superintendent under authority of section twenty-five, article two, chapter fifteen of this code.
ARTICLE 13. CHILD ABUSE AND NEGLECT REGISTRATION. §15-13-1. Intent and findings. (a) It is the intent of this article to assist law-enforcement agencies' efforts to protect children from abuse and neglect by requiring persons convicted of child abuse or neglect to register with the State Police detachment in the county of his or her residence and to report information as required by section two of this article. It is not the intent of the Legislature that this act be used to inflict retribution or additional punishment on any person convicted of any offense requiring registration under this article. This article is intended to be regulatory in nature and not penal, and is intended to provide for the safety of children who are exposed to persons convicted of child abuse and neglect. (b) The Legislature finds and declares that there is a compelling and necessary public interest that children be protected from physical abuse and neglect, and that requirements of this article are appropriate and reasonable because of this compelling state interest. (c) The Legislature also finds and declares that persons required to register for committing child abuse or neglect pursuant to this article have a reduced expectation of privacy because of the state's interest in public safety.
§15-13-2. Registration. (a) The provisions of this article apply both retroactively and prospectively. (b) Any person who has been convicted of an offense or has been found not guilty solely by reason of mental illness, mental retardation or addiction of an offense under any of the provisions of sections two, two-a, three, three-a, four and four-a, article eight-d, of chapter sixty-one of this code or under a statutory provision of another state, the United States Code or the Uniform Code of Military Justice which requires proof of the same essential elements shall register as set forth in subsection (e) of this section and according to the internal management rules promulgated by the superintendent under authority of section twenty-five, article two of this chapter. (c) The clerk of the court in which a person is convicted for an offense described in subsection (b) of this section, or for an offense described in a municipal ordinance which has the same elements as an offense described in said section, shall forward to the superintendent, at a minimum, information required on forms provided by the State Police relating to the person required to register. (1) If the conviction is the judgment of a magistrate court, mayor, police court judge or municipal court judge, the clerk or recorder shall forward to the superintendent, at a minimum, information required on forms provided by the State Police relating to the person required to register when the person convicted has not requested an appeal within thirty days of the sentencing for such conviction. (2) If the conviction is the judgment of a circuit court, the circuit clerk shall submit, at a minimum, the required information to the superintendent regarding the person convicted within thirty days after the judgment was entered. (d) If a person has been convicted of any criminal offense against a child in his or her household or of whom he or she has custodial responsibility, and the sentencing judge makes a written finding that there is a continued likelihood that the person will continue to have regular contact with that child or other children and that as such it is in the best interest of the child or children for that person to be monitored, then that person is subject to the reporting requirements of this article. (e) In addition to any other requirements of this article, persons required to register under the provisions of this article shall provide or cooperate in providing, at a minimum, the following when registering: (1) The full name of the registrant, including any aliases, nicknames or other names used by the registrant; (2) The address where the registrant intends to reside or resides at the time of registration, the name and address of the registrant's employer or place of occupation at the time of registration, the names and addresses of any anticipated future employers or places of occupation, the name and address of any school or training facility the registrant is attending at the time of registration and the names and addresses of any schools or training facilities the registrant expects to attend: Provided, That a post office box or other address that does not have a physical street address of residence may not be provided in lieu of a physical residence address; (3) The registrant's social security number; (4) Ages and names of any children in the household of the registrant, and any children currently living or subsequently born to the registrant. (5) A brief description of the offense or offenses for which the registrant was convicted; and (6) A complete set of the registrant's fingerprints. (f) On the date that any person convicted or found not guilty solely by reason of mental illness, mental retardation or addiction of any of the offenses listed in subsection (b) of this section, hereinafter referred to as a "qualifying offense", including those persons who are continuing under some post-conviction supervisory status, are released, granted probation or a suspended sentence, released on parole, probation, home detention, work release, conditional release or any other release from confinement, the Commissioner of Corrections, Regional Jail Administrator, city or sheriff operating a jail or Secretary of the Department of Health and Human Resources who releases the person, and any parole or probation officer who releases the person or supervises the person following the release, shall inform the person of his or her duty to register and send written notice of the release to the superintendent within three business days of release, and provide any other information as directed by rule of the State Police. The notice must include, at a minimum, the information required by subsection (e) of this section. (g) Any person having a duty to register for a qualifying offense shall register upon conviction, unless that person is confined or incarcerated, in which case he or she shall register within three business days of release, transfer or other change in disposition status. (h) At the time the person is convicted or found not guilty solely by reason of mental illness, mental retardation or addiction in a court of this state of the offenses set forth in subsection (b) of this section, the person shall sign in open court a notification statement acknowledging that he or she understands the requirements imposed by this article. The court shall inform the person so convicted of the requirements to register imposed by this article and shall further satisfy itself by interrogation of the defendant or his or her counsel that the defendant has received notice of the provisions of this article and that the defendant understands the provisions. The statement, when signed and witnessed, constitutes prima facie evidence that the person had knowledge of the requirements of this article. Upon completion of the statement, the court shall provide a copy to the registry. Persons who have not signed a statement under the provisions of this subsection and who are subject to the registration requirements of this article must be informed of the requirement by the State Police whenever the State Police obtain information that the person is subject to registration requirements. (i) The State Police shall maintain a central registry of all persons who register under this article and shall release information only as provided in this article. (j) The superintendent shall provide forms to law-enforcement agencies, circuit clerks and parole officers to facilitate submission of appropriate information necessary to administer the child abuse and neglect registry established by this article. (k) For the purposes of this article, the term "business days", means days exclusive of Saturdays, Sundays and legal holidays as defined in section one, article two, chapter two of this code.
§15-13-3. Change in registry information. (a) When any person required to register under this article changes his or her residence, address, or when any of the other information required by this article changes, he or she shall, within ten business days, inform the West Virginia State Police of the changes in the manner prescribed by the superintendent of State Police in procedural rules promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code. Upon directive by the State Police, any person required to register under this article may be required to appear at the nearest State Police detachment from his or her residence, to verify or provide additional information or documentation necessary to have complete and accurate registry records. (b) A person who is required to register pursuant to the provisions of this article, who intends to move to another state or country shall, prior to such move, notify the State Police of his or her intent to move and of the location to which he or she intends to move, or if that person is incarcerated he or she shall notify correctional officials of his or her intent to reside in some other state or country upon his or her release, and of the location to which he or she intends to move. Upon such notification, the State Police shall notify law-enforcement officials of the jurisdiction where the person indicates he or she intends to reside of the information provided by the person under the provisions of this article.
§15-13-4. Duration. (a) A person required to register pursuant to the provisions of this article shall continue to comply with this section, except during ensuing periods of incarceration or confinement, until ten years have elapsed since the person was released from prison, jail or a mental health facility or ten years have elapsed since the person was placed on probation, parole or supervised or conditional release. The ten-year registration period shall not be reduced by the offender's release from probation, parole or supervised or conditional release. (b) A person whose conviction is overturned for the offense which required them to register under this article shall, upon petition to the court, have their name removed from the registry.
§15-13-5. Distribution and disclosure of information. (a) Within five business days after receiving any notification as described in this article, the State Police shall transmit a copy of the notification statement to the Department of Health and Human Resources as provided in section two of this article. (b) Within five business days after receiving any notification statement pursuant to the provisions of subsection (a) of this section, the Secretary of the Department of Health and Human Resources shall distribute a copy of the notification statement to: (1) The supervisor of each county and municipal law-enforcement office and any campus police department in the city and county where the registrant resides, is employed or attends school or a training facility; (2) The county superintendent of schools where the registrant resides, is employed or attends school or a training facility; and (3) The Child Protective Services office charged with investigating allegations of child abuse or neglect in the county where the registrant resides, is employed or attends school or a training facility. (c) The State Police may furnish information and documentation required in connection with the registration to authorized law enforcement, campus police and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the State of West Virginia upon proper request stating that the records will be used solely for law-enforcement-related purposes. The State Police may disclose information collected under this article to federal, state and local governmental agencies responsible for conducting preemployment checks. (d) An elected public official, public employee or public agency is immune from civil liability for damages arising out of any action relating to the provisions of this section except when the official, employee or agency acted with gross negligence or in bad faith. (e) The information contained in the child abuse and neglect registry is confidential, and may not be disclosed except as specifically provided in this article. The information contained in the registry with respect to an individual shall be provided to that individual promptly upon request. Individuals on the registry requesting registry information shall be afforded the opportunity to file statements correcting any misstatements or inaccuracies contained in the registry. The State Police and the Department of Health and Human Resources may disclose registry information to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign states and of the State of West Virginia upon proper request stating that the information requested is necessary in the interest of and will be used solely in the administration of official duties and the criminal laws. Agreements with other states providing for the reciprocal sharing of abuse and neglect registry information are specifically authorized. Nothing in this article would preclude disclosure of information authorized pursuant to article two-c of this chapter. (f) An active file on requests for information by requesters shall be maintained by the State Police and the Department of Health and Human Resources for a period of one year from the date of a request. (g) Information on the registry shall be exempt from disclosure under the freedom of information act in article one, chapter twenty-nine-b of this code.
§15-13-6. Duties of institution officials. In addition to the duties imposed by sections two and four of this article, the official in charge of the place of confinement of any person required to register under this article shall, before the person is paroled or released, inform that person of his or her duty to register. Further, the official shall obtain the full address of the person and a statement signed by the person acknowledging that the person has been informed of his or her duty to register.
§15-13-7. Failure to register or provide notice of registration changes; penalty. (a) Except as provided in this section, any person required to register under this article who knowingly provides false information or who refuses to provide accurate information when so required by this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $10,000 or imprisoned in jail not more than one year, or both: Provided, That each time the person has a change in any of the registration information as required by this article and fails to register the change or changes, each failure to register each separate item of information changed shall constitute a separate offense. (b) Any person required to register under this article who is convicted of a second or subsequent offense of failing to register or provide a change in any information as required by this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in information as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. (c) In addition to any other penalty specified for failure to register under this article, any person under the supervision of a probation officer, parole officer or any other sanction short of confinement in jail or prison who knowingly refuses to register or who knowingly fails to provide a change in information as required by this article shall be subject to immediate revocation of probation or parole and returned to confinement for the remainder of any suspended or unserved portion of his or her original sentence.
§15-13-8. Registration of out-of-state offenders. (a) When any probation or parole officer accepts supervision of, and has legal authority over, any person required to register under this article from another state under the terms and conditions of the Interstate Compact for the Supervision of Adult Offenders established under article seven, chapter twenty-eight of this code, the officer shall give the person written notice of the registration requirements of this section and obtain a signed statement from the person required to register acknowledging the receipt of the notice. The officer shall obtain and submit to the State Police the information required in subsection (e), section two of this article. (b) Any person: (1) Who resides in another state or federal or military jurisdiction; (2) Who is employed, carries on a vocation, is a student in this state or is a visitor to this state for a period of more than fifteen continuous days; and (3) Who is required by the state, federal or military jurisdiction in which he or she resides to register in that state, federal or military jurisdiction for child abuse or neglect, or has been convicted of a violation in that state, federal or military jurisdiction that is similar to a violation in this article shall register in this state and otherwise comply with the provisions of this article. (c) Any person changing residence to this state from another state or federal or military jurisdiction who is required to register because of a conviction for child abuse or neglect under the laws of that state or federal or military jurisdiction shall register in this state.
ARTICLE 14. THE STATEWIDE INTEROPERABLE RADIO NETWORK. §15-14-1. Short title. This article is known as and may be cited as the “Statewide Interoperable Radio Network Act”. §15-14-2. Definitions. (a) “Director” means the Director of West Virginia Division of Homeland Security and Emergency Management. (b) “Statewide Interoperable Radio Network” or “SIRN” means the interoperable communications network established for the purpose of implementing and maintaining an interoperable communications network for first responders to help assure the safety of all citizens in the event of disaster or emergency. (c) “Statewide Interoperability Coordinator” or “SWIC” means the individual appointed by the Director to oversee the state’s interoperable communications efforts in planning and coordinating the SIRN. (d) “Statewide Interoperability Executive Committee” or “Executive Committee” means the governing body of the SIRN. (e) “WVDHSEM” means the West Virginia Division of Homeland Security and Emergency Management. (f) “Regional Interoperability Committee” means the committee or committees that assist the SWIC and the Executive Committee with governing and monitoring the implementation and operation of the SIRN and establishing goals for the betterment of the SIRN. §15-14-3. Purpose and objectives. (a) One of the most important and profound duties of the State of West Virginia is to provide for the safety and security of her citizens. The state must constantly be prepared to immediately respond to any homeland security threat or event and all disasters, natural or man-made. With any Homeland Security threat or event, and all disasters, natural or man-made, the state must be able to instantly and effectively communicate in order to collaborate with various entities which are geographically dispersed. (b) The purpose of this article is to ensure the most effective communication in the provision of emergency services, to assure an immediate and coordinated response to disasters and emergencies, and to ensure the maintenance and operation of the equipment comprising the SIRN. §15-14-4. Appointment of the Statewide Interoperability Coordinator. (a) On or before July 1, 2017, the director shall appoint the Statewide Interoperability Coordinator from a recommendation of the Statewide Interoperability Executive Committee (SIEC), who shall be employed by and report to the director. The coordinator shall have at a minimum five years’ experience in overseeing and managing major communications systems and supervising employees. (b) The coordinator shall oversee the state’s interoperable communications efforts in planning and coordinating a statewide interoperable radio network that serves the state’s first responders and other users of the network. (c) The coordinator shall provide recommendations to the director to determine statewide priorities related to interoperable communications and shall work with all agencies to ensure the greatest input to the plans. (d) The coordinator shall ensure all interoperable communications funds and functions of this state are coordinated to the maximum extent with the comparable functions of the federal government including its various departments and agencies, of other states and localities and of private agencies of every type, so that the most effective preparation and use may be made of the nation’s and this state’s communications resources and facilities for dealing with any disaster or emergency that may occur. (e) The coordinator will provide the Statewide Interoperable Radio Network approved compatibility equipment list to any state spending unit or state agency, including purchases on behalf of state agencies, county and local first responder agencies for purchases of two-way radio, microwave or satellite equipment and related services, or purchases that utilize state or federal funds distributed to local entities by the State of West Virginia. The purchase of any equipment not on the approved compatibility list must receive prior approval from the coordinator. (f) The coordinator is the point of contact for any public or private entity or individual seeking information about the Radio Network; (g) Prior to any state agency proceeding with a major communications project, an agency shall submit to the coordinator a project proposal, outlining the need for the project, the proposed technology solution, if known, and an explanation of how the project will support the agency’s objective and the state’s strategic interoperable communications plan. (h) The coordinator shall perform any other duties as may be prescribed by the director. (i) If a vacancy exists in this position, the director shall appoint someone to act in this capacity until the Executive Committee makes its recommendations and the director appoints a replacement.
§15-14-5. The Statewide Interoperability Executive Committee. (a) The Statewide Interoperability Executive Committee shall consist of the following members or their designee: (1) The Director of the WVDHSEM; (2) The Superintendent of the West Virginia State Police; (3) The President of the West Virginia Emergency Management Council; (4) The Adjutant General of the West Virginia National Guard; (5) The West Virginia Chief Technology Officer; (6) The President of the West Virginia Enhanced 911 Council; (7) The President of the West Virginia Sheriffs’ Association; (8) The West Virginia State Fire Marshal; (9) The President of the West Virginia County Commissioners’ Association; (10) The President of the West Virginia Municipal League; (11) The Secretary of the Department of Transportation; (12) The Director of the West Virginia Department of Health and Human Resources, Office of Emergency Medical Services; (13) One representative from each of the agencies which own one of the SIRN’s zoned master site switches not otherwise represented; (14) The chairman of each of the Regional Interoperability Committees; (15) A representative of the West Virginia Chapter of the Association of Public Safety Communications Officials; (16) The Director of the West Virginia Parkways Authority; and (17) The Statewide Interoperability Coordinator who shall serve in a nonvoting Ex officio capacity. (b) The director shall serve as the chairman of the Executive Committee. (c) Members of the Executive Committee shall serve without compensation. However, each member of the Executive Committee may receive reimbursement from the Statewide Interoperable Radio Network Account, for actual expenses, including travel expenses, in accordance with state travel guidelines. (d) The Executive Committee may appoint, as nonvoting members, individuals with technical expertise that may assist with its mission.
§15-14-6. Duties of the Statewide Interoperability Executive Committee. The Executive Committee shall: (1) Monitor the implementation and operation of the SIRN; (2) Establish goals and guidance for the betterment of the SIRN; (3) Review and approve all requests for use of the SIRN and its equipment, by a public or private entity; (4) Serve as the mechanism for developing, updating and implementing policies, procedures and guidelines related to the SIRN; (5) Identify new technologies and develop technologies and standards for the SIRN; (6) Enhance the coordination of all available resources for public safety communications interoperability; (7) Investigate all matters relating to integrity, foresight in funding and operations and planning for the SIRN.
§15-14-7. Maintenance and Operations of the Statewide Interoperable Network; personnel; assets; agreements. (a) The director may employ such technical, clerical, legal counsel, stenographic and other personnel, fix their compensation and make expenditures within the appropriation to the agency or from other funds made available for the purpose of providing interoperable communications services to carry out the purpose of this article. (b) All equipment, structures, property, and personnel along with their equipment and vehicles, owned, managed, directed, controlled, and governed by the Department of Health and Human Resources associated with the statewide interoperable radio and/or microwave network and medical command radio system, are transferred to, incorporated in and administered as a part of the WVDHSEM: Provided, That medical command radio system communication equipment, not including the microwave and SIRN equipment, and personnel located in the medical coordination center at Flatwoods, West Virginia shall continue to be managed, directed, controlled, and governed by the Department of Health and Human Resources and are not included in the transfer authorized by this subsection. (c) The director may acquire in the name of the state by purchase, lease or gift, real property and rights or easements necessary or convenient to construct thereon the necessary building or buildings for housing Radio Network employees, equipment or infrastructure. (d) The director or his or her designee may enter into cooperative agreements, land and tower leases, memorandums of understanding/agreement, training contracts or service contracts with political subdivisions of the state, other states, federal agencies, and with public or private agencies for use by the radio network. (e) The WVDHSEM is exempt from the requirements and associated fees of any local ordinances of any political subdivision of the state relating to the construction of towers or other infrastructure for use by the Radio Network to enhance interoperable communications. (f) The WVDHSEM shall support a unified approach to interoperable communications across state, county, and municipal government, to include: (1) Providing ongoing assistance and support to the state’s Medical Command System; and (2) Providing ongoing assistance and support to state agencies in the development of interoperable and emergency communications plans or projects.
§15-14-8. The Regional Interoperability Committees; composition; duties. (a) The Regional Interoperability Committees shall operate in each of the defined state homeland security regions. (b) Each Regional Interoperability Committee consists of no more than one representative from each identified discipline within each region, and includes, is not limited to, the following agencies, as well as those deemed necessary by the SWIC, Regional Interoperability Committee, or Executive Committee to ensure public safety: (1) Municipal, county or regional hospitals; (2) Municipal, county or state law enforcement; (3) Municipal, county or private transit; (4) Civil Air Patrol; (5) County Enhanced 911; (6) Emergency medical services; (7) Federal law enforcement; (8) Federal government (non-law enforcement); (9) Municipal or county fire service; (10) Municipal or county health department; (11) Higher education public safety; (12) Municipal or county Homeland Security/Emergency Management; (13) Private industry-critical infrastructure and key resources; (14) Regional response team; (15) Radio Amateur Civil Emergency Services (RACES) or Amateur Radio Emergency Service (ARES); (16) American Red Cross; (17) Non-first responder state agencies; (18) Volunteer search and rescue organizations; (19) County Commissioners’ Association of West Virginia; and (20) West Virginia Municipal League. (c) The Regional Interoperability Committees shall: (1) Assist the SWIC and the Executive Committee with governing and monitoring the implementation and operation of the SIRN and establishing goals for the betterment of the SIRN; and (2) Serve as the mechanism for providing local level input to the Executive Committee for governance, identifying and developing technologies and standards, and coordination of resources. (d) Regional Interoperability Committee members shall serve without compensation.
§15-14-9. Creation of the Statewide Interoperable Radio Network account; purpose; funding; disbursements. (a) There is hereby created in the State Treasury a special revenue account to be known as the “Statewide Interoperable Radio Network Account” to be administered by the director. The special revenue account shall consist of appropriations made by the Legislature; income derived from the lease of property, towers or tower space owned, operated or controlled by the WVDHSEM or any other state agency managed as part of the SIRN; moneys received by the Department of Health and Human Resources or WVDHSEM as proceeds of any claims for damages to structures, equipment or property of any kind, including moneys in the Insurance Property Loss Claims Fund administered by the Division of Health; income from the investment of moneys held in the special revenue account; grant money and all other sums available for deposit to the special revenue account from any source, public or private. (b) Expenditures from the Statewide Interoperable Radio Network Account shall be for the purposes set forth in this article and used exclusively, to pay costs, fees and expenses incurred, or to be incurred for the following purposes: (1) The maintenance, upkeep and repair of the SIRN; (2) operations of the Executive Committee; (3) payment of salaries for the SWIC and any personnel required to operate and maintain the SIRN; (4) the design, implementation and management of the SIRN; (5) all other related SIRN activities approved by the Executive Committee; and (6) all costs incurred in the administration of the Statewide Interoperable Radio Network Account. Expenditures from the fund are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2018, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature. (c) Disbursements from the Statewide Interoperable Radio Network Account shall be authorized by the director or his or her designee. Moneys in the Statewide Interoperable Radio Network Account are not available for the payment of any personal injury claims, workers’ compensation claims or other types of disability claims. (d) Quarterly, the director shall prepare an accounting of all moneys disbursed from and any deposits made to the Statewide Interoperable Radio Network Account. This accounting shall include the reason for the withdraw, the recipients of any withdraw, and the source of any deposit.
§15-14-10. Rule-making. To implement the provisions of this article, the director may promulgate emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code and may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code.
