Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                 Introduced House Bill 4364                           FISCAL
                                                     NOTE
              By Delegate McGeehan [Introduced January 10, 2024 ; Referred to the Committee on Government Organization then Judiciary]
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  A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section,
          designated §5A-3-3d; to amend and reenact §5F-2-2 of said code; and to amend said code
          by adding thereto a new section, designated §31-15-6d; all relating to the limitations on the
          financial relationships with foreign entities that have values antithetical to those of the
          State of West Virginia.
     Be it enacted by the Legislature of West Virginia:
                    CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
     ARTICLE                         3.                    PURCHASING                           DIVISION
     §5A-3-3d.                 Limitations on              purchasing activities.
          (a) The Legislature finds that:
          (1) The values of the State of West Virginia should be upheld by the government charged
  with managing its affairs.
          (2) As globalization has advanced over the last 30 years, American persons and entities
  with values other than that of the State of West Virginia have sought partnerships with foreign
  entities that have values contrary to that of the State of West Virginia.
          (3) Through complex layering of various company legal entities interested in doing
  business with the State of West Virginia, a company may obfuscate the beneficiaries of the
  proposed commercial activity that are in fact foreign entities that have values contrary to that of the
 State of West Virginia.
         (4) Some foreign entities may have a strategic non-financial interest that would seek to
 harm the United States of America for which the State of West Virginia does not want to
 participate.
         (b) Definitions – For the purpose of this section:
         (1) "Company" means a corporation, partnership, joint venture, limited partnership, limited
 liability partnership, limited liability company, organization, association, or any other business
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 entity that operates to earn a profit: Provided, That the term does not include a publicly traded
 company incorporated within the United States and whose shares are regulated as over-the-
 counter securities by the United States Securities and Exchange Commission.
        (2) "Public Entity" means the State of West Virginia, or any political subdivision thereof,
 and all spending units of the state government including those otherwise excluded from
 applicability under §5A-3-1 of this code.
        (3) For purposes of this section, "foreign entities" are those nations that have antithetical
 values to those of the State of West Virginia and are specifically limited to the following:
        (A) State sponsors of terrorism that have resulted in the nonmilitary deaths of United
 States of America citizens and without admission and restitution or change in regime, which shall
 include natural persons that hold government positions with the state, the political parties that
 have control of the state, and natural persons that are officials of that political party. For purposes
 of this section, these states are:
        (i) Saudi Arabia and;
        (ii) Islamic Republic of Iran
        (B) States that align with communist ideology, which shall include natural persons that hold
 government positions with the state, the political parties that have control of the state, and natural
 persons that are officials of that political party. For purposes of this section, these states are:
        (i) People's Republic of China
        (ii) Democratic People's Republic of Korea
        (iii) Lao People's Democratic Republic
        (iv) Republic of Cuba and;
        (v) Socialist Republic of Vietnam
        (c) A public entity may not enter a contract with a company for goods or services unless the
 contract includes written certification that the company has no financial benefit to a foreign entity
 with values antithetical to those of the State of West Virginia and is able provide evidence to that
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 end. Such evidence should include documentation demonstrating ownership layers that conclude
 with individual natural persons.
         (d) Any contract that violates the requirements of this section shall be void as against
 public policy.
         (e) The Director of Purchasing Division is authorized to promulgate legislative rules,
 including emergency rules, to implement the provisions of this section.
       CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF
                                        STATE GOVERNMENT.
     ARTICLE            2.     TRANSFER              OF         AGENCIES          AND         BOARDS.
     §5F-2-2.         Power and authority of    secretary of    each department.
          (a) Notwithstanding any other provision of this code to the contrary, the secretary of each
  department shall have plenary power and authority within and for the department to:
          (1) Employ and discharge within the office of the secretary employees as may be
  necessary to carry out the functions of the secretary, which employees shall serve at the will and
  pleasure of the secretary;
          (2) Cause the various agencies and boards to be operated effectively, efficiently, and
  economically and develop goals, objectives, policies, and plans that are necessary or desirable for
  the effective, efficient, and economical operation of the department;
          (3) Eliminate or consolidate positions, other than positions of administrators or positions of
 board members and name a person to fill more than one position;
         (4) Transfer permanent state employees between departments in accordance with the
 provisions of §5F-2-7 of this code;
         (5) Delegate, assign, transfer, or combine responsibilities or duties to or among
 employees, other than administrators or board members;
         (6) Reorganize internal functions or operations;
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        (7) Formulate comprehensive budgets for consideration by the Governor;
        (8) Enter into contracts or agreements requiring the expenditure of public funds and
 authorize the expenditure or obligation of public funds as authorized by law: Provided, That the
 powers granted to the secretary to enter into contracts or agreements and to make expenditures or
 obligations of public funds under this provision shall not exceed or be interpreted as authority to
 exceed the powers granted by the Legislature to the various commissioners, directors, or board
 members of the various departments, agencies, or boards that comprise and are incorporated into
 each secretary's department under this chapter: Provided, That limitations as provided in §5A-3-
 3d of this code are observed;
        (9) Acquire by lease or purchase property of whatever kind or character and convey or
 dispose of any property of whatever kind or character as authorized by law: Provided, That the
 powers granted to the secretary to lease, purchase, convey, or dispose of such property shall be
 exercised in accordance with §5A-3-1 et seq., §5A-10-1 et seq., and §5A-3-11 et seq. of this code:
 Provided, however, That the powers granted to the secretary to lease, purchase, convey, or
 dispose of such property shall not exceed or be interpreted as authority to exceed the powers
 granted by the Legislature to the various commissioners, directors, or board members of the
 various departments, agencies, or boards that comprise and are incorporated into each
 secretary's department under this chapter;
        (10) Conduct internal audits;
        (11) Supervise internal management;
        (12) Promulgate rules, as defined in §29A-1-2 of this code, to implement and make
 effective the powers, authority, and duties granted and imposed by the provisions of this chapter in
 accordance with the provisions of chapter 29A of this code;
        (13) Grant or withhold written consent to the proposal of any rule, as defined in §29A-1-2 of
 this code, by any administrator, agency, or board within the department. Without written consent,
 no proposal for a rule shall have any force or effect;
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          (14) Delegate to administrators the duties of the secretary as the secretary may deem
 appropriate, from time to time, to facilitate execution of the powers, authority, and duties delegated
 to the secretary;
          (15) Enter into memoranda of understanding; and
          (16) Take any other action involving or relating to internal management not otherwise
 prohibited by law.
          (b) The secretaries of the departments shall engage in a comprehensive review of the
 practices, policies, and operations of the agencies and boards within their departments to
 determine the feasibility of cost reductions and increased efficiency which may be achieved
 therein, including, but not limited to, the following:
          (1) The elimination, reduction, and restriction of the state's vehicle or other transportation
 fleet;
          (2) The elimination, reduction, and restriction of state government publications, including
 annual reports, informational materials, and promotional materials;
          (3) The termination or rectification of terms contained in lease agreements between the
 state and private sector for offices, equipment, and services;
          (4) The adoption of appropriate systems for accounting, including consideration of an
 accrual basis financial accounting and reporting system;
          (5) The adoption of revised procurement practices to facilitate cost-effective purchasing
 procedures, including consideration of means by which domestic businesses may be assisted to
 compete for state government purchases; and
          (6) The computerization of the functions of the state agencies and boards.
          (c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the
 powers granted to the secretaries shall be exercised by the secretary if to do so would violate or be
 inconsistent with the provisions of any federal law or regulation, any federal-state program or
 federally delegated program or jeopardize the approval, existence, or funding of any program.
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         (d) The layoff and recall rights of employees within the classified service of the state as
 provided in §29-6-10(5) and §29-6-10(6) of this code shall be limited to the organizational unit
 within the agency or board and within the occupational group established by the classification and
 compensation plan for the classified service of the agency or board in which the employee was
 employed prior to the agency or board's transfer or incorporation into the department: Provided,
 That the employee shall possess the qualifications established for the job class. The duration of
 recall rights provided in this subsection shall be limited to two years or the length of tenure,
 whichever is less. Except as provided in this subsection, nothing contained in this section shall be
 construed to abridge the rights of employees within the classified service of the state as provided
 in §29-6-10 and §29-6-10a of this code.
         (e) Notwithstanding any other provision of this code to the contrary, the secretary of each
 department shall cooperate with the State Resiliency Office to the fullest extent practicable to
 assist that office in fulfilling its duties.
                                    CHAPTER 31. CORPORATIONS.
     ARTICLE         15.    WEST        VIRGINIA    ECONOMIC        DEVELOPMENT          AUTHORITY.
     §31-15-6d Limits to authority as it relates to collaborating with companies that benefit foreign entities that have values antithetical to that of the State of West Virginia.
          (a) The Legislature finds that:
          (1) The values of the State of West Virginia should be upheld by the government charged
  with managing its affairs.
          (2) As globalization has advanced over the last 30 years, American persons and entities
  with values other than that of the State of West Virginia have sought partnerships with foreign
  entities that have values contrary to that of the State of West Virginia.
          (3) Through complex layering of various company legal entities interested in doing
  business with the State of West Virginia, a company may obfuscate the beneficiaries of the
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  proposed commercial activity that are in fact foreign entities that have values contrary to that of the
 State of West Virginia.
         (4) Some foreign entities may have a strategic non-financial interest that would seek to
 harm the United States of America for which the State of West Virginia does not want to
 participate.
         (b) Definitions – For the purpose of this section:
         (1) "Company" means a corporation, partnership, joint venture, limited partnership, limited
 liability partnership, limited liability company, organization, association, or any other business
 entity that operates to earn a profit: Provided, That the term does not include a publicly traded
 company incorporated within the United States and whose share are regulated as over-the-
 counter securities by the United States Securities and Exchange Commission.
         (2) "Public Entity" means the State of West Virginia, or any political subdivision thereof,
 and all spending units of the state government including those otherwise excluded from
 applicability under §5A-3-1 of this code.
         (3) For purposes of this section, "foreign entities" are those nations that have antithetical
 values to those of the State of West Virginia and are specifically limited to the following:
         (A) State sponsors of terrorism that have resulted in the nonmilitary deaths of United
 States of America citizens and without admission and restitution or change in regime:
         (i) Saudi Arabia
         (ii) Islamic Republic of Iran
         (B) States that align with communist ideology, which shall include individuals that hold
 government positions with the state, the political parties that have control of the state, and
 individuals that are officials of that political party.
         (i) People's Republic of China
         (ii) Democratic People’s Republic of Korea
         (iii) Lao People's Democratic Republic
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         (iv) Republic of Cuba
         (v) Socialist Republic of Vietnam
         (c) The West Virginia Economic Development Board may not exercise is authorities for any
 projects involving a company that is unable to certify and evidence that there is no financial benefit
 to a foreign entity with values antithetical to those of the State of West Virginia. Such evidence
 should include documentation demonstrating ownership layers that conclude with individual
 natural persons.
         (d) Any action that is violates the requirements of this section shall be void as against
 public policy.
         (e) The West Virginia Economic Development Authority is authorized to promulgate
 legislative rules, including emergency rules, to implement the provisions of this section.
         (f) The West Virginia Economic Development Authority shall maintain accurate records
 reflecting the cost of administering the provisions of this article.
             NOTE: The purpose of this bill is to limit state agencies from forming financial relationships that will benefit foreign entities that have values antithetical to those of the State of West Virginia.
             Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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Statutes affected: 
Introduced Version: 5A-3-3d, 5F-2-2, 31-15-6d