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FREE CONFERENCE COMMITTEE REPORT ADOPTED -- NOT PRINTED
June 21, 2007
Introduced by Senators Grooms, Richardson, Verdin, Campsen and Vaughn
S. Printed 5/17/07--S. [SEC 5/18/07 3:06 PM]
Read the first time January 30, 2007.
TO AMEND SECTION 1-30-105 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEPARTMENT OF TRANSPORTATION, SO AS TO PROVIDE THAT THE COMMISSION IS ABOLISHED AND THE GOVERNING AUTHORITY OF THE DEPARTMENT OF TRANSPORTATION IS A BOARD AS PROVIDED BY LAW; TO AMEND SECTION 1-3-240, RELATING TO THE REMOVAL OF CERTAIN OFFICIALS FROM OFFICE, SO AS TO PROVIDE THAT A DEPARTMENT OF TRANSPORTATION BOARD MEMBER MAY BE REMOVED BY THE GOVERNOR FOR MALFEASANCE, MISFEASANCE, INCOMPETENCY, ABSENTEEISM, CONFLICTS OF INTEREST, MISCONDUCT, PERSISTENT NEGLECT OF DUTY IN OFFICE, OR INCAPACITY; TO AMEND CHAPTER 1, TITLE 57, RELATING TO THE DEPARTMENT OF TRANSPORTATION, SO AS TO RECONSTITUTE THE COMMISSION AS A BOARD, TO PROVIDE THAT THE BOARD SHALL BE COMPOSED OF SEVEN MEMBERS APPOINTED BY THE GOVERNOR, SCREENED BY THE JOINT TRANSPORTATION REVIEW COMMITTEE, AND SUBJECT TO THE ADVICE AND CONSENT OF THE SENATE, TO ESTABLISH THE LENGTH OF TERMS THAT BOARD MEMBERS MAY SERVE, AND DEFINE THE POWERS AND DUTIES OF THE BOARD, TO PROVIDE THAT THE BOARD EMPLOYS AN EXECUTIVE DIRECTOR WHO SERVES AT THE PLEASURE OF THE BOARD, AND TO PROVIDE THAT THE BOARD EMPLOYS A CHIEF HIGHWAY ENGINEER WHO MAY BE REMOVED BY THE BOARD FOR MALFEASANCE, MISFEASANCE, INCOMPETENCY, ABSENTEEISM, CONFLICTS OF INTEREST, MISCONDUCT, PERSISTENT NEGLECT OF DUTY IN OFFICE, OR INCAPACITY AND WHO, IN CONJUNCTION WITH THE BOARD, MUST CREATE THE STATEWIDE TRANSPORTATION IMPROVEMENT PROGRAM (STIP); AND BY ADDING ARTICLE 7 TO CHAPTER 1 OF TITLE 57, SO AS TO CREATE THE JOINT TRANSPORTATION REVIEW COMMITTEE AND TO PROVIDE FOR THE MANNER IN WHICH DEPARTMENT OF TRANSPORTATION BOARD MEMBERS ARE SCREENED.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 1-30-10(B) of the 1976 Code is amended to read:
"(B)(1) The governing authority of each department shall be either:
(i) a director, and in the case of the Department of Commerce, the secretary, who must be appointed by the Governor with the advice and consent of the Senate, subject to removal from office by the Governor pursuant to provisions of Section 1-3-240;
(ii) a seven member board to be appointed and constituted in a manner provided for by law;
(iii) in the case of the Department of Agriculture and the Department of Education, the State Commissioner of Agriculture and the State Superintendent of Education, respectively, elected to office under the Constitution of this State
(iv) in the case of the Department of Transportation a seven member commission constituted in a manner provided by law, and a Secretary of Transportation appointed by and serving at the pleasure of the Governor."
SECTION 2. Section 1-30-105 of the 1976 Code is amended to read:
"Section 1-30-105. Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Transportation to be initially divided into divisions for Mass Transit, Construction and Maintenance, Engineering and Planning, Finance and Administration;
provided, however, that the State Highway Commission as constituted on June 30, 1993, under the provisions of Title 56, shall be the governing authority for the department until February 15, 1994, or as soon as its successors are elected or appointed and qualified, whichever is later :.
Department of Highways and Public Transportation, except the Motor Vehicle Division, which was established as the Department of Motor Vehicles by Section 56-1-5, and the State Highway Patrol, formerly provided for at Section 56-1-10, et seq."
SECTION 3. Section 1-3-240(C)(1) of the 1976 Code, as last amended by Act 137 of 2005, is further amended to read:
"(C)(1) Persons appointed to the following offices of the State may be removed by the Governor for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity:
(a) Workers' Compensation Commission;
Reserved Department of Transportation Commission;
(c) Ethics Commission;
(d) Election Commission;
(e) Professional and Occupational Licensing Boards;
(f) Juvenile Parole Board;
(g) Probation, Parole and Pardon Board;
(h) Director of the Department of Public Safety;
(i) Board of the Department of Health and Environmental Control, excepting the chairman;
(j) Chief of State Law Enforcement Division;
(k) South Carolina Lottery Commission;
(l) Executive Director of the Office of Regulatory Staff; and
(m) Directors of the South Carolina Public Service Authority appointed pursuant to Section 58-31-20. A director of the South Carolina Public Service Authority also may be removed for his breach of any duty arising under Section 58-31-55 or 58-31-56. The Governor must not request a director of the South Carolina Public Service Authority to resign unless cause for removal, as established by this subsection, exists. Removal of a director of the South Carolina Public Service Authority, except as is provided by this section or by Section 58-31-20(A), must be considered to be an irreparable injury for which no adequate remedy at law exists."
SECTION 4. Section 8-13-1110(B) of the 1976 Code, as last amended by Act 6 of 1995, is further amended to read:
"(B) Each of the following public officials, public members, and public employees must file a statement of economic interests with the appropriate supervisory office, unless otherwise provided:
(1) a person appointed to fill the unexpired term of an elective office;
(2) a salaried member of a state board, commission, or agency;
(3) the chief administrative official or employee and the deputy or assistant administrative official or employee or director of a division, institution, or facility of any agency or department of state government;
(4) the city administrator, city manager, or chief municipal administrative official or employee, by whatever title;
(5) the county manager, county administrator, county supervisor, or chief county administrative official or employee, by whatever title;
(6) the chief administrative official or employee of each political subdivision including, but not limited to, school districts, libraries, regional planning councils, airport commissions, hospitals, community action agencies, water and sewer districts, and development commissions;
(7) a school district and county superintendent of education;
(8) a school district board member and a county board of education member;
(9) the chief finance official or employee and the chief purchasing official or employee of each agency, institution, or facility of state government, and of each county, municipality, or other political subdivision including, but not limited to, those named in item (6);
(10) a public official;
(11) a public member who serves on a state board, commission, or council
. ; and
(12) Department of Transportation District Engineering Administrators."
SECTION 5. Chapter 1, Title 57 of the 1976 Code is amended to read:
Section 57-1-10. For the purposes of this title, the following words, phrases, and terms are defined as follows:
(1) 'Commission' means the administrative and governing
body authority of the Department of Transportation.
(2) 'Department' means the Department of Transportation (DOT).
'Director' 'Secretary of Transportation' means the chief administrative officer of the Department of Transportation.
Section 57-1-20. The Department of Transportation is established as an administrative agency of state government which is comprised of a Division of Mass Transit; a Division of Construction Engineering and Planning; and a Division of Finance and Administration. Each division of the Department of Transportation shall have such functions and powers as provided for by law.
Section 57-1-30. (A) The department shall have as its functions and purposes the systematic planning, construction, maintenance, and operation of the state highway system and the development of a statewide mass transit system that is consistent with the needs and desires of the public.
(B) The department shall coordinate all state and federal programs relating to highways among all departments, agencies, and other bodies politic and legally constituted agencies of this State and the performance of such other duties and matters as may be delegated to it pursuant to law. The goal of the department is to provide adequate, safe, and efficient transportation services for the movement of people and goods.
Section 57-1-40. (A) It is unlawful for a member of the commission or an engineer, agent, or other employee, acting for or in behalf of the department or commission, to accept or agree to accept, receive or agree to receive, or ask or solicit, either directly or indirectly, with the intent to have his decision or action on any question, matter, cause, or proceeding which at the time may be pending or which by law may be brought before him in his official capacity or in his place of trust or profit influenced, any:
(2) contract, promise, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value;
(3) political appointment or influence, present, or reward;
(4) employment; or
(5) other thing of value.
A person violating the provisions of subsection (A) is guilty of a felony and, upon conviction, must be imprisoned not more than five years and is disqualified forever from holding any office of trust or profit under the Constitution or laws of this State.
(B) It is unlawful for a person to give or offer to give, promise, or cause or procure to be promised, offered, or given, either directly or indirectly, to a member of the commission or an engineer, agent, or other employee acting for or on behalf of the commission or department with the intent to have his decision or action on any question, matter, cause, or proceeding which at the time may be pending or which by law may be brought before him in his official capacity or in his place of trust or profit influenced, any:
(2) contract, promise, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value;
(3) political appointment or influence, present, or reward;
(4) employment; or
(5) other thing of value.
A person violating the provisions of subsection (B) is guilty of a felony and, upon conviction, must be imprisoned not more than five years and is disqualified forever from holding any office of trust or profit under the Constitution or laws of this State.
(C) The members and employees of the commission and employees of the department are subject to the provisions of Chapter 13 of Title 8, the State Ethics Act, and the provisions of Chapter 78 of Title 15, the South Carolina Tort Claims Act.
Section 57-1-50. The assent of the State is hereby given to the terms and provisions of any act providing for federal aid to the states for the construction of highways and other related transportation projects. The good faith of the State is hereby pledged to provide sufficient funds to meet the requirements of said federal act, so as to acquire the benefits thereof.
Section 57-1-60. The Governor, in addition to other duties and responsibilities conferred upon him by the Constitution and laws of this State, is charged with the responsibility for the administration of the state's highway safety programs and is further charged with the duty of contracting and doing all other things necessary on behalf of this State and, in so doing, to work with federal and state agencies, agencies private and public, interested organizations, and with individuals to effectuate that purpose. The Governor shall be the official of this State having the ultimate responsibility for dealing with the federal government with respect to highway safety transportation programs and activities. To that end the Governor shall coordinate the activities of any and all departments and agencies of this State and its subdivisions.
Section 57-1-70. It is the sense of the General Assembly that the Department of Transportation should comply with Section 105(f) of the Federal Aid Highway Act. The department is directed to effectuate and assure the compliance through contract documents and regulations as may be necessary and such input from the Governor's Office (Office of Small and Minority Business Assistance) in the promulgation of the regulations.
Section 57-1-310. (A) The congressional districts of this State are constituted and created Department of Transportation
districts Districts of the State, designated by numbers corresponding to the numbers of the respective congressional districts. The Commission of the Department of Transportation shall be composed of one member from each transportation district elected by the delegations of the congressional district and one member appointed by the Governor , upon the advice and consent of the Senate, from the State at large. Such elections or appointment, as the case may be, shall take into account race and gender so as to represent, to the greatest extent possible, all segments of the population of the State; however, consideration of these factors in making an appointment or in an election in no way creates a cause of action or basis for an employee grievance for a person appointed or elected or for a person who fails to be appointed or elected.
(B)(1) Candidates for election to the commission must be screened by the Joint Transportation Review Committee, as provided in Article 7 of this chapter, and determined to meet the qualifications contained in subsection (C) in order to be eligible for election.
(2) The at-large appointment made by the Governor must be transmitted to the Joint Transportation Review Committee. The Joint Transportation Review Committee must determine whether the at-large appointee meets the qualifications in subsection (C) and report its findings to the General Assembly and the Governor. Until the Joint Transportation Review Committee finds a gubernatorial appointee qualified, the appointee must not take the oath of office and the full rights and privileges and powers of the office shall not vest.
(C) The qualifications that each commission member must possess, include, but are not limited to:
(1) a baccalaureate or more advanced degree from:
(a) a recognized institution of higher learning requiring face-to-face contact between its students and instructors prior to completion of the academic program;
(b) an institution of higher learning that has been accredited by a regional or national accrediting body; or
(c) an institution of higher learning chartered before 1962; or
(2) a background of at least five years in any combination of the following fields of expertise:
(e) environmental issues;
(f) management; or
(D) No member of the General Assembly or member of his immediate family shall be elected or appointed to the commission while the member is serving in the General Assembly; nor shall a member of the General Assembly or a member of his immediate family be elected or appointed to the commission for a period of four years after the member either:
(1) ceases to be a member of the General Assembly; or
(2) fails to file for election to the General Assembly in accordance with Section 7-11-15.
Section 57-1-320. (A) A county that is divided among two or more Department of Transportation districts, for purposes of electing a commission member, is deemed to be considered in the district which contains the largest number of residents from that county.
(B) No county within a Department of Transportation district shall have a resident commission member for more than one consecutive term and in no event shall any two persons from the same county serve as a commission member simultaneously except as provided hereinafter.
Section 57-1-325. Legislators residing in the congressional district shall meet upon written call of a majority of the members of the delegation of each district at a time and place to be designated in the call for the purpose of electing a commissioner to represent the district. A majority present, either in person or by written proxy, of the delegation from a given congressional district constitutes a quorum for the purpose of electing a district commissioner. No person may be elected commissioner who fails to receive a majority vote of the members of the delegation.
The delegation must be organized by the election of a chairman and a secretary, and the delegations of each congressional district shall adopt such rules as they consider proper to govern the election. Any absentee may vote by written proxy. When the election is completed, the chairman and the secretary of the delegation shall immediately transmit the name of the person elected to the Secretary of State who shall issue to the person, after he has taken the usual oath of office, a certificate of election as commissioner. The Governor shall
thereupon then issue a commission to the person, and pending the issuance of the commission, the certificate of election is sufficient warrant to the person to perform all of the duties and functions of his office as commissioner. Each commissioner shall serve until his successor is elected and qualified.
Section 57-1-330. (A)
Beginning February 15, 1994, commissioners must be elected by the legislative delegation of each congressional district. For the purposes of electing a commission member, a legislator shall vote only in the congressional district in which he resides. All commission members must serve for are elected to a term of office of four years which expires on February fifteenth of the appropriate year. Commissioners shall continue to serve until their successors are elected and qualify, provided that a commissioner may only serve in a hold-over capacity for a period not to exceed six months. Any vacancy occurring in the office of commissioner shall be filled by election or appointment in the manner provided in this article for the unexpired term only. No person is eligible to serve as a commission member who is not a resident of that district at the time of his appointment , except that the at-large commission member may be appointed from any county in the State regardless of whether another commissioner is serving from that county. Failure by a an elected commission member to maintain residency in the district for which he is elected shall result in the forfeiture of his office. The at-large commission member, upon confirmation, shall serve as chairman of the commission.
The terms of the initial members of the commission appointed from congressional districts are as follows:
(1) commission members appointed to represent odd-numbered congressional districts--two years; and
(2) commission members appointed to represent even-numbered congressional districts--four years. The at-large commission member shall serve at the pleasure of the Governor. The at-large commission member may be appointed from any county in the State unless another commission member is serving from that county. Failure by the at-large commission member to maintain residence in the State shall result in a forfeiture of his office.
The at-large commissioner shall serve at the pleasure of the Governor. All elected commission members may be removed from office as provided in Section 1-3-240(C)(1).
Section 57-1-340. Each commission member, within thirty days after his election or appointment, and before entering upon the discharge of the duties of his office, shall take, subscribe, and file with the Secretary of State the oath of office prescribed by the Constitution of the State.
Section 57-1-350. (A) The commission may adopt an official seal for use on official documents of the department.
(B) The commission shall elect a chairman and adopt its own rules and procedures and may select such additional officers to serve such terms as the commission may designate.
(C) Commissioners must be reimbursed for official expenses as provided by law for members of state boards and commissions as established in the annual general appropriations act.
(D) All commission members are eligible to vote on all matters that come before the commission.
Section 57-1-360. (A) The commission must appoint a chief internal auditor and other professional, administrative, technical, and clerical personnel as the commission determines to be necessary in the proper discharge of the commission's duties and responsibilities provided by law. The commission must also provide professional, administrative, technical, and clerical personnel, as the commission determines to be necessary, for the chief internal auditor to properly discharge his duties and responsibilities authorized by the commission or provided by law. Except as otherwise provided, any employees hired pursuant to this section shall serve at the pleasure of the commission.
(B)(1) The chief internal auditor shall serve for a term of four years and may be removed by the commission only for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity. The chief internal auditor must be a Certified Public Accountant and possess any other experience the commission may require. The chief internal auditor must establish, implement, and maintain the exclusive internal audit function of all departmental activities. The commission shall set the salary for the chief internal auditor as allowed by statute or applicable law.
(2) The audits performed by the chief internal auditor must comply with recognized governmental auditing standards. The department and any entity contracting with the department must fully cooperate with the chief internal auditor in the discharge of his duties and responsibilities and must timely produce all books, papers, correspondence, memoranda, and other records considered necessary in connection with an internal audit. All final audit reports must be submitted to the commission and the Chairman of the Senate Transportation Committee, the Chairman of the Senate Finance Committee, the Chairman of the House of Representatives Education and Public Works Committee, and the Chairman of the House of Representatives Ways and Means Committee before being made public.
(3) The commission is vested with the exclusive management and control of the chief internal auditor.
(C) The department must, at its own expense, provide appropriate office space within its headquarters building and facility service, including janitorial, utility and telephone services, computer and technology services, and related supplies, for the chief internal auditor and his support staff.
Section 57-1-370. (A) The commission must develop the long-range Statewide Transportation Plan, with a minimum twenty-year forecast period at the time of adoption, that provides for the development and implementation of the multimodal transportation system for the State. The plan must be developed in a manner consistent with all federal laws or regulations and in consultation with all interested parties, particularly the metropolitan planning organizations and the nonmetropolitan planning organization area local officials. The plan may be revised from time to time as permitted by and in the manner required by federal laws or regulations.
(B) Concerning the development, content, and implementation of the Statewide Transportation Improvement Program, the commission must:
(1) develop a process for consulting with nonmetropolitan local officials, with responsibility for transportation, that provides an opportunity for their participation in the development of the long-range Statewide Transportation Plan and the Statewide Transportation Improvement Program;
(2) approve the Statewide Transportation Improvement Program and ensure that it is developed pursuant to federal laws and regulations and approve an updated Statewide Transportation Improvement Program from time to time as permitted by and in the manner required by federal laws or regulations;
(3) develop and revise the transportation plan for inclusion in the Statewide Transportation Improvement Program, for each nonmetropolitan planning area in consultation with local officials with responsibility for transportation;
(4) work in consultation with each metropolitan planning organization to develop and revise a transportation improvement program for each metropolitan planning area;
(5) select from the approved Statewide Transportation Improvement Program the transportation projects undertaken in nonmetropolitan areas in consultation with the affected nonmetropolitan local officials with responsibility for transportation;
(6) select projects to be undertaken, in consultation with each metropolitan planning organization, from the metropolitan planning organization's approved transportation improvement plan in metropolitan areas not designated as a transportation management area;
(7) consult with each metropolitan planning organization, in metropolitan areas designated as transportation management areas, concerning the projects selected to be undertaken from the approved transportation improvement program and in accordance with the priorities approved by the transportation improvement program; and
(8) when selecting projects to be undertaken from nontransportation management area metropolitan planning organizations' transportation improvement programs, or selecting the nonmetropolitan area projects to be undertaken that are included in the Statewide Transportation Improvement Program, and when consulting with metropolitan planning organizations designated as transportation management areas, the commission shall establish a priority list of projects to the extent permitted by federal laws or regulations, taking into consideration at least the following criteria:
(1) financial viability including a life cycle analysis of estimated maintenance and repair costs over the expected life of the project;
(2) public safety;
(3) potential for economic development;
(4) traffic volume and congestion;
(5) truck traffic;
(6) the pavement quality index;
(7) environmental impact;
(8) alternative transportation solutions; and
(9) consistency with local land use plans.
(C)(1) To the extent that state funds are available to address the needs of the state highway system, the commission must develop a comprehensive plan specifying objectives and performance measures for the preservation and improvement of the existing system. The projects included in this plan must be supported solely by state funds including the Nonfederal Aid Highway Fund or other state revenue source. When developing the plan required by this subsection, the commission must consider, but is not limited to considering, the criteria in subsection (B)(8).
(2) When state funding is programmed for a project selected from the plan to be undertaken, the department may use federal law, regulations, or guidelines relevant to the type of project being undertaken to be eligible for federal matching funds.
(D) To the extent permitted by federal laws or regulations, the commission has the authority to award all federal enhancement grants. Annually, the commission must submit a report to the Chairman of the Senate Transportation Committee, the Chairman of the Senate Finance Committee, the Chairman of the House of Representatives Ways and Means Committee, and the Chairman of the House of Representatives Education and Public Works Committee describing the number of federal enhancement grants that were awarded and the recipients of the federal enhancement grants.
(E) The commission must give its prior authorization to any consulting contracts advertised for or awarded by the department and authorize the selection of consultants by department personnel.
(F) Roads may not be added to or removed from the State Highway System without prior authorization from the commission.
(G) The department shall conduct a public hearing in each county in which a public hearing is required by federal regulations to allow the department to share information regarding the project with the local community and to allow the local community to address its concerns with department officials. The hearing must include the opportunity for members of the public to address a hearing officer in a format in which comments can be heard by the general public.
(H) The department shall promulgate, by regulation, procedures not inconsistent with federal laws for applying the criteria contained in subsection (B)(8) for prioritizing projects.
(I) The department may not sell surplus property without prior authorization from the commission.
(J) The commission must approve the department's annual budget.
(K) The department may not dedicate or name highway facilities without prior authorization from the commission.
(L) The department may not enter into any contract with a value in excess of five hundred thousand dollars without the prior authorization of the commission.
(M) The commission shall give prior approval to any additional contracts the department wishes to be entered into during a fiscal year with an entity that has already received individual contracts during that fiscal year that in the aggregate value are at least five hundred thousand dollars.
(N) Any request made for resurfacing, installation of new signals, curb cuts on primary roads, bike lanes, or construction projects under ten million dollars must be reviewed and approved by the commission who certify that the request is needed based upon objective and quantifiable factors before work may proceed.
(O) The commission shall have any other rights, duties, obligations, or responsibilities as provided by law.
Section 57-1-410. The
commission Governor shall employ a director appoint, with the advice and consent of the Senate, a Secretary of Transportation who shall serve at the pleasure of the commission Governor. A person appointed to this position shall be a citizen of possess practical and successful business and executive ability and who has a knowledge be knowledgeable in the field of transportation. The director Secretary of Transportation shall receive such compensation as may be established under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriations act.
Section 57-1-430. (A) The
director secretary is charged with the affirmative duty to must carry out the policies of the commission, and to administer the day-to-day affairs of the department, to direct the implementation of the Statewide Transportation Improvement Program and the statewide mass transit plan, and to ensure the timely completion of all projects undertaken by the department, and routine operation and maintenance requests, and emergency repairs. and may exercise all powers belonging to the commission within the guidelines and policies established by the commission, when the commission is not in session. He must represent the department in its dealings with other state agencies, local governments, special districts, and the federal government. The secretary must prepare an annual budget for the department that must be approved by the commission before becoming effective.
(B) For each division, the
director secretary may employ such personnel and prescribe their duties, powers, and functions as he considers necessary and as may be authorized by statute and for which funds have been authorized in the annual general appropriations act.
Section 57-1-440. The
director secretary shall have the exclusive authority to employ a chief counsel and such staff attorneys and support staff as are necessary to represent the department in legal matters, condemnation procedures, and other such litigation. Any extra legal services that may be required shall be performed by attorneys selected by the director secretary. The department is authorized to retain independent adjusters for purposes of investigating and adjusting claims and suits resulting from motor vehicle damage and personal injury damage programs involving department liability exposure and recovery potential. Expenses for the administration and implementation of this section shall be paid for from the state highway fund.
Section 57-1-450. The
director secretary shall appoint a deputy director for each division of the department who shall serve at the pleasure of the director secretary and shall recommend the salary for each deputy director as allowed by statute or applicable law.
Section 57-1-460. (A)(1) For purposes of this section 'routine operation and maintenance' includes, but is not limited to, signage of routes, pavement marking, replacement and installation of guard rails, repair and installation of signals, 'chip seal' of existing roads, enhancement projects such as streetscaping, adopt an interchange, bike lanes, curb cuts, installation of overhead message boards and cameras, research projects funded with federal aid, and pavement management system mapping.
(2) For purposes of this section 'emergency repairs' means, but is not limited to, unforeseen deterioration of roads, bridges, or equipment due to accidents, natural disasters or other causes that could not have been expected or that pose an immediate danger to the public.
(B) The secretary is charged with evaluating and approving the routine operation and maintenance requests or emergency repairs that are needed for existing roads and bridges that are not included in the Statewide Transportation Improvement Program. However, requests made for resurfacing, installation of new signals, curb cuts on primary roads, bike lanes, or construction projects under ten million dollars must be approved by the commission pursuant to Section 57-1-370(N).
Section 57-1-470. (A) At each commission meeting the secretary must provide a detailed written report of all:
(1) requests that he has received since the last commission meeting for routine operation and maintenance or emergency repairs, his decision concerning those requests, and a status report on all approved requests; and
(2) pending projects approved by the commission pursuant to Section 57-1-370(N) and the status of those projects, if there has been any material change in the status since the last commission meeting.
(B) The commission must review the report and make findings as to whether the requests approved by the secretary meet the needs of the public based upon objective and quantifiable factors.
(C) The commission may question the secretary concerning the approval or denial of any request and the process the secretary employed to reach his decision. The commission may also request additional information concerning any request and further investigate any request, approval, or denial of a project by the secretary. The secretary must fully cooperate with any request made of him or his office by the commission regarding any further investigation undertaken by the commission.
(D) The text of the secretary's written report and the findings made by the commission must be included in the commission meeting minutes. A list of all projects approved by the commission at its last meeting, together with its explanation of the objective and quantifiable factors used to justify its approval, must also be included in the commission meeting minutes.
Section 57-1-490. (A) The department shall be audited by a certified public accountant or firm of certified public accountants once each year to be designated by the State Auditor. The designated accountant or firm of accountants shall issue audited financial statements in accordance with generally accepted accounting principles, and such financial statements shall be made available annually by October fifteenth to the General Assembly. The costs and expenses of the audit must be paid by the department out of its funds.
(B) The Materials Management Office of the Budget and Control Board must annually audit the department's internal procurement operation to ensure that the department has acted properly with regard to the department's exemptions contained in Section 11-35-710. The audit must be performed in accordance with applicable state law, including, but not limited to, administrative penalties for violations found as a result of the audit. The results of the audit must be made available by October fifteenth to the Department of Transportation Commission, the Department of the Transportation's chief internal auditor, the Governor, the Chairmen of the Senate Finance and Transportation Committees, and the Chairmen of the House of Representatives Ways and Means and Education and Public Works Committees. The costs and expenses of the audit must be paid by the department out its funds.
(C) The Legislative Audit Council shall contract for an independent performance and compliance audit of the department's finance and administration division, mass transit division, and construction engineering and planning division. This audit must be completed by January 15, 2010. The Legislative Audit Council may contract for follow-up audits or conduct follow-up audits as needed based upon the audit's initial findings. The costs of these audits, including related administrative and management expenses of the Legislative Audit Council, are an operating expense of the department. The department shall pay directly to the Legislative Audit Council the cost of the audits.
(D) Copies of every audit conducted pursuant to this section must be made available to the Department of Transportation Commission, the Department of Transportation chief internal auditor, the Governor, the Chairmen of the Senate Finance and Transportation Committees, and the Chairmen of the House of Representatives Ways and Means and Education and Public Works Committees.
Section 57-1-500. The secretary must provide for a workshop of at least two biennial contact hours concerning ethics and the Administrative Procedures Act for the commissioners, the secretary, the chief internal auditor, and senior management employees of the Department of Transportation; and a biennial ethics workshop of at least two contact hours for all other department employees.
SECTION 5. Chapter 1, Title 57 of the 1976 Code is amended by adding:
Section 57-1-710. There is hereby established a committee to be known as the Joint Transportation Review Committee, hereinafter referred to as the review committee, which must exercise the powers and fulfill the duties described in this article.
Section 57-1-720. (A) The review committee is composed of the following ten members.
(1) From the Senate:
(a) the Chairman of the Finance Committee or his designee;
(b) the Chairman of the Judiciary Committee or his designee;
(c) the Chairman of the Transportation Committee or his designee; and
(d) two members appointed by the President Pro Tempore, one member upon the recommendation of the Senate Majority Leader and one member upon the recommendation of the Senate Minority Leader.
(2) From the House of Representatives:
(a) the Chairman of the Ways and Means Committee or his designee;
(b) the Chairman of the Education and Public Works Committee or his designee;
(c) one member of the House of Representatives appointed by the Speaker of the House of Representatives; and
(d) two members appointed by the Speaker of the House of Representatives from the state at large.
(B) In making appointments to the review committee, race, gender, and other demographic factors, such as residence in rural or urban areas, must be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of the State.
(C) The review committee must meet as soon as practicable after appointment and organize itself by electing one of its members as chairman and such other officers as the review committee may consider necessary. Thereafter, the review committee must meet as necessary to screen candidates for election to the commission and at the call of the chairman or by a majority of the members. A quorum consists of six members.
Section 57-1-730. The review committee has the following powers and duties:
(1) to screen each candidate applying for election to the commission;
(2) in screening candidates and making its findings, the review committee must give due consideration to:
(a) ability, area of expertise, dedication, compassion, common sense, and integrity of each candidate; and
(b) the impact that each candidate would have on the racial and gender composition of the commission, and each candidate's impact on other demographic factors represented on the commission, such as residence in rural or urban areas, to assure nondiscrimination to the greatest extent possible of all segments of the population of the State;
(3) to determine if each candidate is qualified and meets the requirements provided by law to serve as a member of the Department of Transportation Commission, make findings concerning whether each candidate is qualified, and deliver its findings to the Clerk of the Senate and the Clerk of the House of Representatives; and
(4) to submit the names of all qualified candidates to the congressional district delegation for election.
Section 57-1-740. (A) For purposes of this section, a vacancy is created on the commission when a term expires, a new congressional district is created, or a commission member resigns, dies, or is removed from office as provided in Section 57-1-330(C). If known in advance, the review committee may provide notice of a vacancy and begin screening prior to the actual date of the vacancy.
(B) Whenever a commission member must be elected to fill a vacancy:
(1) The review committee must forward a notice of the transportation commission district member vacancy to:
(a) a newspaper of general circulation within the congressional district from which a commission member must be elected with a request that it be published at least once a week for four consecutive weeks;
(b) any person who has informed the committee that he desires to be notified of the vacancy; and
(c) to each member of the congressional district delegation.
The committee may provide such additional notice that it deems appropriate.
(2) The review committee may not accept a notice of intention to seek the office from any candidate until the review committee certifies to the Clerk of the Senate and the Clerk of the House of Representatives that the proper notices, required by this section, have been requested to be published or provided as required in this subsection.
(3) The cost of the notification process required by this section must be absorbed and paid from the approved accounts of the Senate and the House of Representatives as contained in the annual appropriations act.
(C) Any person desiring to be a candidate for election to fill a vacancy on the commission must file a notice of intention with the review committee no later than five business days after the last date the published notice appeared in a newspaper of general circulation. Upon the expiration of the notice of intention filing period, the review committee must provide every member of the affected congressional district delegation with a complete list of the people who filed a notice.
(D)(1) When the notice of intention filing period closes, the review committee shall begin to conduct an investigation of candidates, as it considers appropriate, and may utilize the services of any agency of state government to assist in the investigation. Upon request of the review committee for assistance, an agency shall cooperate fully.
(2)(a) Upon completion of the candidate investigations, the chairman of the review committee shall schedule a public hearing concerning the qualifications of the candidates. Any person who desires to testify at the hearing, including the candidates, must furnish a written statement of his proposed testimony to the chairman of the review committee. This statement shall be furnished no later than forty-eight hours prior to the date and time set for the hearing. The review committee shall determine the persons who shall testify at the hearing. All testimony, including documents furnished to the review committee, shall be submitted under oath and persons knowingly furnishing false information either orally or in writing shall be subject to the penalties provided by law for perjury and false swearing. During the course of the investigation, the review committee may schedule an executive session at which the candidates, and other persons who the review committee wishes to interview, may be interviewed on matters pertinent to the candidate's qualification for the office to be filled. The review committee shall render its tentative findings as to whether the candidates are qualified to serve on the commission as a district member and its reasons for making the findings within a reasonable time after the hearing.
(b) As soon as possible after the completion of the hearing, a verbatim copy of the testimony, documents submitted at the hearing, and findings of fact shall be transcribed and published in the journals of both houses or otherwise made available in a reasonable number of copies to the members of both houses and a copy must be furnished to each candidate.
(c) The review committee must transmit to the congressional district delegation the names of all qualified candidates. No member of the congressional district delegation may pledge his vote to elect a nominee until the qualifications of the candidates to fill the vacancy have been determined by the review committee and until the review committee has formally released its report as to the qualifications of the nominee to the congressional district delegation. The formal release of the report of qualifications shall occur no earlier than forty-eight hours after the name of the nominee has been initially released to members of the congressional district delegation. For purposes of this section, indirectly seeking a pledge means the candidate, or someone acting on behalf of and at the request of the candidate, requests another person to contact a member of the General Assembly on behalf of the candidate before the nomination for that office is formally made by the review committee. The prohibitions of this section do not extend to an announcement of candidacy by the candidate and statements by the candidate detailing the candidate's qualifications.
(d) A candidate may withdraw at any stage of the proceedings, and in this event no further inquiry, report on, or consideration of his candidacy shall be made.
(3) All records, information, and other material that the review committee has obtained or used to make its findings of fact, except materials, records, and information presented under oath at the public hearing, shall be kept strictly confidential. After the review committee has reported its findings of fact, or after a candidate withdraws his name from consideration, all records, information, and material required to be kept confidential must be destroyed.
(4)(a) The review committee may, in the discharge of its duties, administer oaths and affirmations, take depositions, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records considered necessary in connection with the investigation of the review committee.
(b) No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda, or other records before the review committee on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture. However, no individual shall be prosecuted or subjected to any criminal penalty based upon testimony or evidence submitted or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that the individual so testifying shall not be exempt from prosecution and punishment for perjury and false swearing committed during testimony.
(c) In case of contumacy by any person or refusal to obey a subpoena issued to any person, any circuit court of this State or circuit judge thereof within the jurisdiction of which the person guilty of contumacy or refusal to obey is found, resides, or transacts business, upon application by the review committee, may issue to the person an order requiring him to appear before the review committee to produce evidence, if so ordered, or to give testimony concerning the matter under investigation. Any failure to obey an order of the court may be punished as contempt. Subpoenas shall be issued in the name of the review committee and shall be signed by the review committee chairman. Subpoenas shall be issued to those persons as the review committee may designate.
(5) The privilege of the floor in either house of the General Assembly may not be granted to a candidate, or any immediate family member of a candidate unless the family member is serving in the General Assembly, during the time the candidate's application is pending before the review committee and during the time the candidate's election is pending.
Section 57-1-750. (A) Committee members are entitled to such mileage, subsistence, and per diem as authorized by law for members of boards, committees, and commissions while in the performance of the duties for which appointed. These expenses shall be paid from the general fund of the State on warrants duly signed by the chairman of the review committee and payable by the authorities from which they are appointed.
(B) The expenses associated with the review committee's duties to qualify and nominate candidates for the Department of Transportation Commission must be paid from the legislative appropriation of the general fund of the State.
Section 57-1-760. (A) The review committee must use clerical and professional employees of the General Assembly for its staff, who must be made available to the review committee.
(B) The review committee may employ or retain other professional staff, upon the determination of the necessity for other staff by the review committee and as may be funded in the legislative appropriation of the annual general appropriations act.
(C) The costs and expenses of the review committee must be funded in the legislative appropriation of the annual general appropriations act."
SECTION 7. Unless extended by subsequent act of the General Assembly, the Governor's authority to appoint the Secretary of the Department of Transportation pursuant to Section 57-1-410 terminates and is devolved upon the Department of Transportation Commission effective July 1, 2015. All other provisions regarding the rights, powers, and duties of the secretary shall remain in full force and effect.
SECTION 8. The initial procurement audit required by Section 5 of this act must be transmitted to the Chairman of the Senate Finance Committee and the House of Representatives Ways and Means Committee on or before October 15, 2008, and then annually thereafter as provided in Section 57-1-490.
SECTION 9. The Department of Transportation is authorized and directed to promulgate regulations to implement the policies and purposes of this act including, but not limited to, regulations concerning the chief internal auditor, approval of projects by the commission pursuant to Section 57-1-370(N), and the secretary's approval of routine operations and maintenance and emergency repairs requests. All regulations promulgated pursuant to this section must be reviewed and approved by the Department of Transportation Commission before they are submitted to the General Assembly for consideration.
SECTION 10. References in the 1976 Code to the "director" that refer to the chief administrative officer of the Department of Transportation, mean the "Secretary of the Department of Transportation" or "secretary", as appropriate; and references to "Department of Transportation Commissioner" and references to "deputy director" changed to "division director" in Section 57-1-450 mean "division director". The Code Commissioner shall change references in the 1976 Code to conform to this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.
SECTION 11. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 12. (A) The repeal or amendment by this act of any law, whether temporary or permanent, does not affect pending actions, rights, duties, or liabilities founded on it, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision expressly provides it. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws. Any state agency, board, commission, or council to which are transferred the powers, duties, and functions of any state agency, board, commission, or council relating to the pending proceeding must be substituted as a party in interest.
(B) Any statute enacted and any rule or regulation made in respect to any state agency, board, commission, or council or function transferred to, or consolidated, coordinated, or combined with any other state agency, board, commission, or council or function under the provisions of this act before the effective date of the transfer, consolidation, coordination, or combination, except to the extent repealed, modified, superseded, or made inapplicable by or under the authority of law, shall have the same effect as if the transfer, consolidation, coordination, or combination had not been made. But when any such statute, rule, or regulation has vested functions in the state agency, board, commission, or council from which the transfer is made under the act, the functions, insofar as they are to be exercised after the transfer, must be considered as vested in the state agency, board, commission, or council to which the transfer is made under the act.
SECTION 13. This act takes effect upon approval by the Governor.
/s/Sen. Glenn F. McConnell /s/Rep. Annette D. Young
/s/Sen. Thomas L. Moore /s/Rep. James H. Merrill
/s/Sen. W. Greg Ryberg /s/Rep. Michael A. Anthony
On Part of the Senate. On Part of the House.
This web page was last updated on Monday, June 22, 2009 at 2:41 P.M.