Chapter 4. The Legislature


Published: 2015

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WEST VIRGINIA CODE











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WVC 4-

CHAPTER 4. THE LEGISLATURE.

WVC 4 - 10 -

ARTICLE 10. PERFORMANCE REVIEW ACT.







WVC 4 - 10 - 1

§4-10-1. Short title.

This article shall be known as and may be cited as the West

Virginia Performance Review Act.







WVC 4 - 10 - 2

§4-10-2. Legislative findings; performance review process

authorized.

(a) The Legislature finds that:

(1) State government has created many state agencies without

sufficient legislative oversight, regulatory accountability or an

effective system of checks and balances;

(2) State agencies have been created without demonstrable

evidence that their benefits to the public clearly justify their

creation;

(3) Once established, state agencies tend to acquire permanent

status, often without regard for the condition that gave rise to

their establishment;

(4) State agencies have been allowed to establish rules and at

times may acquire autonomy and authority inconsistent with

principles of accountability;

(5) Employees of state agencies are often beyond the effective

control of elected officials and efforts to encourage modernization

or to review performance become difficult;

(6) Regulatory boards established pursuant to chapter thirty

of this code need periodic review to ascertain the need for their

continuation; and

(7) By establishing a process for the objective review of

state agencies and regulatory boards, their programs, functions and

activities, the Legislature may evaluate the need for their

continued existence, consolidation or termination and improve government efficiency, effectiveness and accountability.

(b) The Legislature hereby authorizes a process to review the

operation and performance of state agencies and regulatory boards

to determine the need for their continued existence, consolidation

or termination.







WVC 4 - 10 - 3

§4-10-3. Definitions.

As used in this article, unless the context clearly indicates

a different meaning:

(a) "Agency" or "state agency" means a state governmental

entity, including any bureau, department, division, commission,

agency, committee, office, board, authority, subdivision, program,

council, advisory body, cabinet, panel, system, task force, fund,

compact, institution, survey, position, coalition or other entity

in the State of West Virginia.

(b) "Agency review" means a review performed on agencies of a

department pursuant to the provisions of this article.

(c) "Committee" means the Joint Committee on Government

Operations.

(d) "Compliance review" means a review for compliance with

recommendations contained in a previous agency review or regulatory

board review conducted pursuant to the provisions of this article

and may include further inquiry of other issues as directed by the

President, the Speaker, the Legislative Auditor, the committee or

the joint standing committee.

(e) "Department" means the departments created within the

executive branch, headed by a secretary appointed by the Governor,

as authorized by the Code of West Virginia.

(f) "Department presentation" means a presentation by a

department pursuant to the provisions of this article.

(g) "Division" means the Performance Evaluation and Research Division of the Legislative Auditor.

(h) "Joint standing committee" means the Joint Standing

Committee on Government Organization.

(i) "Privatize" means a contract to procure the services of a

private vendor to provide a service that is similar to, and/or in

lieu of, a service provided by a state agency.

(j) "Regulatory Board" means a board that regulates

professions and occupations, created under the provisions of

chapter thirty of this code.

(k) "Regulatory Board Review" means a review performed on a

regulatory board pursuant to the provisions of this article.







WVC 4 - 10 - 4

§4-10-4. Joint Committee on Government Operations.

(a) The Joint Committee on Government Operations created by

prior enactment of this article is hereby continued.

(b) The committee is composed of fifteen members as follows:

(1) Five members of the Senate, to be appointed by the

President, with no more than three being from the same political

party;

(2) Five members of the House of Delegates, to be appointed by

the Speaker, with no more than three being from the same political

party; and

(3) Five citizen members from this state who are not

legislators, public officials or public employees, to be appointed

by the Speaker of the House and the President of the Senate, with

no more than three being from the same political party and at least

one of whom shall reside in each congressional district of this

state.

(c) The committee has two cochairs, one selected by the

President of the Senate from the members appointed from the Senate

and one selected by the Speaker of the House of Delegates from the

members appointed from the House of Delegates.

(d) All members of the committee serve until their successors

have been appointed.

(e) All members of the committee are entitled to compensation

and reimbursement for expenses as authorized for members of the

Legislature in accordance with the performance of their interim duties.







WVC 4 - 10 - 4 A

§4-10-4a.

Repealed.

Acts, 2007 Reg. Sess., Ch. 200.







WVC 4 - 10 - 5

§4-10-5. Powers and duties of the committee and joint standing

committee.

(a) To carry out the duties set forth in this article, the

committee or the joint standing committee, any authorized employee

of the committee, the joint standing committee, the Legislative

Auditor or any employee of the division working at the direction of

the committee or the joint standing committee, shall have access,

including copying, to all records of every state agency in West

Virginia.

(b) When furnishing information, agencies shall provide the

information in the format in which it is requested, if the request

is specific as to a preferred format.

(c) The committee or the joint standing committee may hold

public hearings in furtherance of the purposes of this article, at

such times and places within the state as desired. A member of the

committee or the joint standing committee may administer oaths to

persons testifying at such hearings or meetings.

(d) The committee or the joint standing committee may issue a

subpoena, with the signature of either cochair of the committee or

the joint standing committee and served in the manner provided by

law, to summon and compel the attendance of witnesses and their

examination under oath and the production of all books, papers,

documents and records necessary or convenient to be examined and

used by the committee or joint standing committee in the

performance of its duties.

(e) If any witness subpoenaed to appear at any hearing or

meeting refuses or fails to appear or to answer questions put to

him or her, or refuses or fails to produce books, papers, documents

or records within his or her control when the same are demanded,

the committee or the joint standing committee, in its discretion,

may enforce obedience to its subpoena by attachment, fine or

imprisonment, as provided in article one of this chapter, or may

report the facts to the circuit court of Kanawha County or any

other court of competent jurisdiction and the court shall compel

obedience to the subpoena as though it had been issued by the

court.

(f) Witnesses subpoenaed to attend hearings or meetings

pursuant to the provisions of this article, except officers or

employees of the state, shall be allowed the same mileage and per

diem as is allowed witnesses before any petit jury.

(g) The committee or the joint standing committee, subject to

the approval of the Joint Committee on Government and Finance, may

employ such persons as it considers necessary to carry out the

duties and responsibilities under this article and may contract for

outside expertise in conducting reviews.

(h) The committee or the joint standing committee may collect,

and the agency or regulatory board shall promptly pay, the costs

associated with conducting the reviews performed under this

article, upon presentation of a statement for the costs incurred.

All money received by the committee or the joint standing committee from this source shall be expended only for the purpose of covering

the costs associated with such services, unless otherwise directed

by the Legislature.







WVC 4 - 10 - 5 A

§4-10-5a.

Repealed.

Acts, 2007 Reg. Sess., Ch. 200.







WVC 4 - 10 - 5 B

§4-10-5b.

Repealed.

Acts, 2007 Reg. Sess., Ch. 200.







WVC 4 - 10 - 6

§4-10-6. Department presentation and schedule.

(a) During the two thousand seven legislative interim period,

each department shall make a presentation pursuant to the

provisions of this section to the joint standing committee and the

committee.

(b) The department shall provide to the joint standing

committee and the committee a written copy of the presentation.

The presentation shall include:

(1) A departmental chart designating each agency under the

purview of the department;

(2) An analysis of the department's internal performance

measures and self-assessment systems; and

(3) For each agency under the purview of the department, the

following:

(A) The mission, goals and functions of the agency;

(B) The statutory or other legal authority under which the

agency operates;

(C) The number of employees of the agency for the immediate

past ten years;

(D) The budget for the agency for the immediate past ten

years;

(E) Any potential or actual loss of revenue due to operations,

changes in law or any other reason;

(F) The extent to which the agency has operated in the public

interest;

(G) The extent to which the agency has complied with state

personnel practices, including affirmative action requirements;

(H) The extent to which the agency has encouraged public

participation in the making of its rules and decisions and has

encouraged interested persons to report to it on the impact of its

rules and decisions on the effectiveness, economy and availability

of services that it has provided;

(I) The efficiency with which public inquiries or complaints

regarding the activities of the agency have been processed and

resolved;

(J) The extent to which statutory, regulatory, budgeting or

other changes are necessary to enable the agency to better serve

the interests of the public and to comply with the factors

enumerated in this subsection; and

(K) A recommendation as to whether the agency should be

continued, consolidated or terminated.

(c) The schedule for the presentations by the departments

shall be as follows:

(1) May, two thousand seven, Department of Administration;

(2) June, two thousand seven, Department of Education and the

Arts;

(3) July, two thousand seven, Department of Education,

including the Higher Education Policy Commission and the West

Virginia Council for Community and Technical College Education;

(4) August, two thousand seven, Department of Revenue;

(5) September, two thousand seven, Department of Environmental

Protection;

(6) October, two thousand seven, Department of Health and

Human Resources, including the Bureau of Senior Services;

(7) November, two thousand seven, Department of Commerce;

(8) December, two thousand seven, Department of Military

Affairs and Public Safety; and

(9) January, two thousand eight, Department of Transportation.







WVC 4 - 10 - 6 A

§4-10-6a.

Repealed.

Acts, 2007 Reg. Sess., Ch. 200.







WVC 4 - 10 - 7

§4-10-7. Agency review.

(a) The committee and the joint standing committee shall

conduct agency reviews, or authorize the division to conduct agency

reviews as one of its duties in addition to its other duties

prescribed by law, in accordance with generally accepted government

auditing standards (GAGAS) as promulgated by the U.S. Government

Accountability Office, on one or more of the agencies under the

purview of a department, during the year in which the department is

scheduled for review under the provisions of this article.

(b) The agency review may include, but is not limited to:

(1) An identification and description of the agency under

review;

(2) The number of employees of the agency for the immediate

past ten years;

(3) The budget for the agency for the immediate past ten

years;

(4) Whether the agency is effectively and efficiently carrying

out its statutory duties or legal authority;

(5) Whether the activities of the agency duplicate or overlap

with those of other agencies and, if so, how these activities could

be consolidated;

(6) A cost-benefit analysis, as described in subsection (e) of

this section, on state services that are privatized or contemplated

to be privatized;

(7) An analysis of the extent to which agency websites are accurate, updated and user friendly;

(8) An assessment of the utilization of information technology

systems within the agency, including interagency and intra-agency

communications;

(9) An analysis of any issues raised by the presentation made

by the department pursuant to the provisions of this article;

(10) An analysis of any other issues as the committee or the

joint standing committee may direct; and

(11) A recommendation as to whether the agency under review

should be continued, consolidated or terminated.

(c) The committee or the joint standing committee may vote on

the recommendation as to whether the agency under review should be

continued, consolidated or terminated. Recommendations of the

committee or the joint standing committee shall be given

considerable weight in determining if an agency should be

continued, consolidated or terminated.

(d) An agency may be subject to a compliance review pursuant

to the provisions of this article.

(e) A cost-benefit analysis authorized by this section may

include:

(1) The tangible benefits of privatizing the service;

(2) Any legal impediments that may limit or prevent

privatization of the service;

(3) The availability of multiple qualified and competitive

private vendors; and

(4) A cost comparison, including total fixed and variable,

direct and indirect, costs of the current governmental operation

and the private vendor contract.







WVC 4 - 10 - 8

§4-10-8. Schedule of departments for agency review.

     (a) Each department shall make a presentation, pursuant to the

provisions of this article, to the joint standing committee and the

committee during the first interim meeting after the regular

session of the year in which the department is to be reviewed

pursuant to the schedule set forth in subsection (b) of this

section.

     (b) An agency review shall be performed on one or more

agencies under the purview of each department at least once every

seven years, as follows:

     (1) 2013, the Department of Transportation;

     (2) 2014, the Department of Administration;

     (3) 2015, the Department of Education, including the Higher

Education Policy Commission and the West Virginia Council for

Community and Technical College Education;

     (4) 2016, the Department of Veterans' Assistance and the

Department of Education and the Arts;

     (5) 2017, the Department of Revenue and the Department of

Commerce;

     (6) 2018, the Department of Environmental Protection and the

Department of Military Affairs and Public Safety;

     (7) 2019, the Department of Health and Human Resources,

including the Bureau of Senior Services; and

     (8) 2020, the Department of Transportation.







WVC 4 - 10 - 9

§4-10-9. Regulatory board review.

(a) The committee and the joint standing committee shall

conduct regulatory board reviews, or authorize the division to

conduct regulatory board reviews as one of its duties in addition

to its other duties prescribed by law, in accordance with generally

accepted government auditing standards (GAGAS) as promulgated by

the U.S. Government Accountability Office, on each regulatory board

to ascertain if there is a need for the continuation, consolidation

or termination of the regulatory board.

(b) A regulatory board review shall be performed on each

regulatory board at least once every twelve years. A regulatory

board may be subject to a compliance review pursuant to the

provisions of this article.

(c) When a new regulatory board is created, a date for a

regulatory board review shall be included in the act that creates

the board, within twelve years of the effective date of the act.

(d) The regulatory board review may include:

(1) Whether the board complies with the policies and

provisions of chapter thirty of this code and other applicable laws

and rules;

(2) Whether the board follows a disciplinary procedure which

observes due process rights and protects the public interest;

(3) Whether the basis or facts that necessitated the initial

licensing or regulation of a profession or occupation have changed,

or other conditions have arisen that would warrant increased, decreased or the same degree of regulation;

(4) Whether the composition of the board adequately represents

the public interest and whether the board encourages public

participation in its decisions rather than participation only by

the industry and individuals it regulates;

(5) Whether statutory changes are necessary to improve board

operations to enhance the public interest;

(6) An analysis of any other issues the committee or the joint

standing committee may direct; and

(7) A recommendation as to whether the regulatory board under

review should be continued, consolidated or terminated.

(e) The committee or the joint standing committee may vote on

the recommendation as to whether the regulatory board under review

should be continued, consolidated or terminated. Recommendations

of the committee or the joint standing committee shall be given

considerable weight in determining if an regulatory board should be

continued, consolidated or terminated.







WVC 4 - 10 - 10

§4-10-10. Regulatory board review schedule.

(a) A regulatory board review is required for all regulatory

boards.

(b) A regulatory board review shall be performed on each

regulatory board at least once every twelve years, commencing as

follows:

(1) Two thousand eight: Board of Acupuncture; Board of

Barbers and Cosmetologists; and Board of Examiners in Counseling.

(2) Two thousand nine: Board of Hearing Aid Dealers; Board of

Licensed Dietitians; and Nursing Home Administrators Board.

(3) Two thousand ten: Board of Dental Examiners; Board of

Medicine; and Board of Pharmacy.

(4) Two thousand eleven: Board of Chiropractic Examiners;

Board of Osteopathy; and Board of Physical Therapy.

(5) Two thousand twelve: Board of Occupational Therapy; Board

of Examiners for Speech-Language Pathology and Audiology; and

Medical Imaging and Radiation Therapy Board of Examiners.

(6) Two thousand thirteen: Board of Professional Surveyors;

Board of Registration for Foresters; and Board of Registration for

Professional Engineers.

(7) Two thousand fourteen: Board of Examiners for Licensed

Practical Nurses; Board of Examiners for Registered Professional

Nurses; and Massage Therapy Licensure Board.

(8) Two thousand fifteen: Board of Architects; Board of

Embalmers and Funeral Directors; and Board of Landscape Architects.

(9) Two thousand sixteen: Board of Registration for

Sanitarians; Real Estate Appraiser Licensure and Certification

Board; and Real Estate Commission.

(10) Two thousand seventeen: Board of Accountancy; Board of

Respiratory Care Practitioners; and Board of Social Work Examiners.

(11) Two thousand eighteen: Board of Examiners of

Psychologists; Board of Optometry; and Board of Veterinary

Medicine.







WVC 4 - 10 - 10 A

§4-10-10a.

Repealed.

Acts, 2007 Reg. Sess., Ch. 200.







WVC 4 - 10 - 11

§4-10-11. Compliance review.

(a) After an agency review or a regulatory board review, if

the committee or the joint standing committee finds that an agency

or a regulatory board needs further review, then the committee or

the joint standing committee may request a compliance review.

(b) If the committee or the joint standing committee requests

a compliance review for an agency or a regulatory board, then it

must state, in writing, the specific reasons for the compliance

review and its expected completion date.







WVC 4 - 10 - 11 A

§4-10-11a.

Repealed.

Acts, 2007 Reg. Sess., Ch. 200.







WVC 4 - 10 - 12

§4-10-12. Termination of an agency or regulatory board;

reestablishment of terminated agency or regulatory

board.

(a) If the Legislature terminates an agency or regulatory

board, then the agency or regulatory board shall continue in

existence until the first day of July of the next succeeding year

for the purpose of winding up its affairs. Upon the expiration of

one year after termination, the agency or regulatory board shall

cease all activities.

(b) During the wind-up year, the impending termination may not

reduce nor otherwise limit the powers or authority of that

terminated agency or regulatory board.

(c) An agency that has been terminated pursuant to the

provisions of this article may be reestablished by the Legislature.

If the agency is reestablished by the Legislature during the

wind-up year with substantially the same powers, duties or

functions, then the agency is considered continued.

(d) If a regulatory board is reestablished by the Legislature

during the wind-up year with substantially the same powers, duties

or functions, then the regulatory board is considered continued.

If a regulatory board is not reestablished by the Legislature

during the wind-up year, then the regulatory board is considered

terminated and the profession or occupation must apply for

regulation through the sunrise process, under the provisions of

this code, to be reestablished.







WVC 4 - 10 - 13

§4-10-13. Disposition of agency or regulatory board assets,

equipment and records after termination.

(a) On or before the thirtieth day of June of the wind-up

year, the terminated agency or regulatory board shall file a

written statement with the Secretary of the Department of

Administration and the division describing the disposition of its

funds, assets, equipment and records.

(b) The division shall review the statement of the terminated

agency or regulatory board and report the results of its review to

the committee and the joint standing committee.

(c) Any unexpended funds of the terminated agency or

regulatory board shall revert to the fund from which they were

appropriated or, if that fund is abolished, to the General Revenue

Fund.

(d) All remaining assets and equipment of a terminated agency

or regulatory board shall be transferred to the secretary of the

department of which it was a part or to the state agency for

surplus property in the Department of Administration.

(e) The records of a terminated agency or regulatory board

shall be deposited with the Department of Administration.







WVC 4 - 10 - 14

§4-10-14. Nullifying agency and regulatory board termination under

prior law.

No agency or regulatory board terminates pursuant to

references to this article.





Note: WV Code updated with legislation passed through the 2015 Regular Session

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