hdj2003-03-16-68

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Sunday, March 16, 2003

The House of Delegates met at 1:00 p.m., and was called to order by the Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Saturday, March 15, 2003, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Conference Committee Report Availability

At 1:07 p.m., the Clerk announced the availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 2050, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution.
Committee Reports

Chairman Spencer, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:

Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 15th day of March, 2003, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:

(H. B. 2118), Adjusting the retirement benefits for all members of the West Virginia state police retirement system,

(H. B. 2224), Relating to higher education reorganization,

(H. B. 2878), Allowing certain municipalities providing advanced life support ambulance services to examine, train and employ fire medics,

(H. B. 2975), Providing a window for persons who were members of PERS and who left state employment withdrawing their PERS moneys to buy back their time with interest,

(Com. Sub. for H. B. 3046), Facilitating compliance with and enforcement of provisions of the Tobacco Master Settlement Agreement,

(H. B. 3050), Authorizing the county commission of Jefferson County to convey parcel of county-owned land to the Jefferson County fairgrounds,

And,

(Com. Sub. for S. B. No. 522), Authorizing county boards of education to lease school property no longer needed.
Messages from the Executive

The Speaker laid before the House of Delegates a communication from His Excellency, the Governor, setting forth his disapproval of a bill heretofore passed by both houses, as follows:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 14, 2003
Veto Message
The Honorable Robert S. Kiss
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Kiss:

Pursuant to the provisions of Section 14, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled House Bill No. 2840.

Enrolled House Bill No. 2840 is a special act of the Legislature relating to the Greater Huntington Park and Recreation District generally. I must object to this bill because its proposed title does not reflect the amendments it purports to make to the Acts of the Legislature. A reasonable person would not be able to discern the amendments to the Acts without reading the entire text of the bill. Accordingly, I find the title inconsistent with the substance of the bill so as to render the bill constitutionally defective. For this reason, I must veto this legislation.

Notwithstanding this action, I urge the Legislature to amend the title and other erroneous designations and return the bill for approval.

Very truly yours,

Bob Wise,

Governor.

On motion of Delegate Varner, the bill was taken up for immediate consideration.

In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.

On motion of Mr. Speaker, Mr. Kiss, Enrolled House Bill 2840 was amended, in an effort to meet the objections of the Governor, by amending the bill the title of the bill to read as follows:

Enr. H. B. 2840 - "A Bill to amend and reenact sections two, three, four and six-a, chapter twenty-six, acts of the Legislature, regular session, one thousand nine hundred twenty-five (municipal charters), as last amended by chapter one hundred ninety-four, acts of the Legislature, regular session, one thousand nine hundred eighty-three, all relating to the Greater Huntington Park and Recreation District; increasing the number of members on the board."

The bill, as amended in an effort to meet the objections of the Governor, was then put upon its passage.

On the passage of the bill, the Speaker propounded, "Shall the bill now pass, as amended, in an effort to meet the objections of the Governor?"

On this question, the yeas and nays were taken (Roll No. 702), and there were--yeas 95, nays none, absent and not voting 5, with the yeas, nays and absent and not voting being as follows:

Yeas: Mr. Speaker, Mr. Kiss, and Delegates Amores, Anderson, Armstead, Ashley, Azinger, Beach, Blair, Boggs, Border, Brown, Browning, Butcher, Calvert, Campbell, Canterbury, Caputo, Carmichael, Caruth, Coleman, Craig, Crosier, DeLong, Doyle, Duke, Ellem, Ennis, Evans, Faircloth, Ferrell, Fleischauer, Foster, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Iaquinta, Kominar, Kuhn, Leach, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Mezzatesta, Michael, Morgan, Overington, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino, Poling, Proudfoot, Renner, Romine, Schoen, Shaver, Shelton, Smirl, Sobonya, Stalnaker, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, R. Thompson, R. M. Thompson, Trump, Tucker, Varner, Wakim, Walters, Warner, Webb, Webster, G. White, H. White, Williams, Wright, Yeager and Yost.

Nays: None.

Absent And Not Voting: Beane, Cann, Schadler, Spencer and Staton.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 2840) passed, as a result of the objections of the Governor.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Pursuant to the provisions of Section 14, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled House Bill No. 2953.

The purpose of Enrolled House Bill No. 2953 is to incorporate certain amendments to the prepaid college tuition program, which I support as necessary to preserve the actuarial integrity of that program. Nevertheless, I must object to this bill because the description of the bill's contents in its proposed title does not accurately reflect its contents. Thus, a reasonable person would not be able to discern the actual amendments to the code without reading the entire text of the bill. Accordingly, I find the title inconsistent with the substance of the bill so as to render the bill constitutionally defective. For this reason, I must veto this legislation.

Notwithstanding this action, I urge the Legislature to amend the title and other erroneous designations and return the bill for approval.

Very truly yours,

Bob Wise,

Governor.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.

On motion of Mr. Speaker, Mr. Kiss, Enrolled House Bill 2953 was amended, in an effort to meet the objections of the Governor, by amending the title of the bill to read as follows:

Enrolled H. B. 2953 - "A Bill to amend and reenact section six, article thirty, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section thirteen, article eight, chapter thirty-six of said code, all relating to the administration of the prepaid tuition plan of the West Virginia college prepaid tuition and savings program; clarifying how moneys in the prepaid tuition trust fund are processed when the plan is terminated; closing the prepaid tuition plan to new contracts until further legislative authorization; continuing the plan as to current contract owners; providing for accrual of investment earnings; continuing annual evaluation of actuarial soundness of the prepaid tuition trust fund; requiring annual reports by the chairman of the prepaid tuition trust fund; establishing a mechanism to eliminate any actuarially projected unfunded liability in the prepaid tuition trust fund over a fixed period with funds from the unclaimed property trust fund in an amount not to exceed five hundred thousand dollars annually; creating the prepaid tuition trust escrow account and establishing purposes therefor; providing for the investment and use of the money in the prepaid tuition trust escrow account; providing for the transfer of funds in the unclaimed property trust fund to the prepaid tuition trust escrow account and to the general revenue fund; and providing for the disposition of funds in the prepaid tuition trust escrow account upon closure of the prepaid tuition trust fund."

The bill, as amended in an effort to meet the objections of the Governor, was then put upon its passage.

On the passage of the bill, the Speaker propounded, "Shall the bill now pass, as amended, in an effort to meet the objections of the Governor?"

On this question, the yeas and nays were taken (Roll No. 703), and there were--yeas 98, nays none, absent and not voting 2, with the yeas, nays and absent and not voting being as follows:

Yeas: Mr. Speaker, Mr. Kiss, and Delegates Amores, Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border, Brown, Browning, Butcher, Calvert, Campbell, Canterbury, Caputo, Carmichael, Caruth, Coleman, Craig, Crosier, DeLong, Doyle, Duke, Ellem, Ennis, Evans, Faircloth, Ferrell, Fleischauer, Foster, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Iaquinta, Kominar, Kuhn, Leach, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Mezzatesta, Michael, Morgan, Overington, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino, Poling, Proudfoot, Renner, Romine, Schoen, Shaver, Shelton, Smirl, Sobonya, Spencer, Stalnaker, Staton, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, R. Thompson, R. M. Thompson, Trump, Tucker, Varner, Wakim, Walters, Warner, Webb, Webster, G. White, H. White, Williams, Wright, Yeager and Yost.

Nays: None.

Absent And Not Voting: Cann and Schadler.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 2953) passed, as a result of the objections of the Governor.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 704), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Cann and Schadler.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2953) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Pursuant to the provisions of Section 14, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled House Bill No. 3207.

Enrolled House Bill No. 3207 is a supplementary appropriations bill that was intended to provide $2,017,000 from the Division of Juvenile Services personal services appropriation to the Division of Corrections for payments to jails, a budgetary transfer that I support. Nevertheless, I must object to this bill because its proposed title, and substantive contents, contains several erroneous organizational designations. For the transfer to be effective, these designations must be corrected. For these reasons, I must veto this legislation.

Notwithstanding this action, I urge the Legislature to amend the title and other erroneous designations and return the bill for approval.

Very truly yours,

Bob Wise,

Governor.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.

On motion of Delegate Staton, Enrolled House Bill 3207 was amended, in an effort to meet the objections of the Governor, by amending the bill as follows:

On page one, on the fourth line following the enacting clause, following the word "organization", by striking out the number "0620" and inserting in lieu thereof the number "0621".

The bill, as amended in an effort to meet the objections of the Governor, was then put upon its passage.

On the passage of the bill, the Speaker propounded, "Shall the bill now pass, as amended, in an effort to meet the objections of the Governor?"

On this question, the yeas and nays were taken (Roll No. 705), and there were--yeas 98, nays none, absent and not voting 2, with the yeas, nays and absent and not voting being as follows:

Nays: None.

Absent And Not Voting: Cann and Schadler.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 3207) passed, as a result of the objections of the Governor.

On motion of Delegate Staton, the title of the bill was amended to read as follows:

Enrolled H. B. 3207 - "A Bill supplementing, amending, reducing and increasing items of the existing appropriations from the state fund, general revenue, to the department of military affairs and public safety-division of juvenile services, fund 0570, fiscal year 2003, organization 0621 and the department of military affairs and public safety-division of corrections-correctional units, fund 0450, fiscal year 2003, organization 0608, supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand three."

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 706), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Cann and Schadler.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 3207) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Pursuant to the provisions of Section 14, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled House Bill No. 3217.

Enrolled House Bill No. 3217 is a supplementary appropriations bill that was intended to create a new fund for the purpose of receiving federal moneys in connection with the Help America Vote Act. I must object to this bill because in its proposed title it purports to describe a "federal consolidated fund" which is not otherwise provided for in the substance of the bill. Furthermore, the bill contains an erroneous fund designation. In order to create this fund, and receive the federal moneys available under the Act, these designations must be corrected. For these reasons, I must veto this legislation.

Notwithstanding this action, I urge the Legislature to amend the title and other erroneous designations and return the bill for approval.

Very truly yours,

Bob Wise,

Governor.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.

On motion of Delegate Staton, Enrolled House Bill 3217 was amended, in an effort to meet the objections of the Governor, by amending the bill as follows:

On page one, following the enacting clause, by striking out the words "That the total appropriation for fiscal year ending the thirtieth day of June, two thousand three, to the secretary of state, fund 8854, fiscal year 2003, organization 1600, be established and supplemented the total appropriation by nine million dollars in the line item as follows" followed by a colon, and inserting in lieu thereof the following: "That chapter thirteen, acts of the Legislature, regular session, two thousand two, known as the budget bill, be amended and supplemented by adding to Title II, section six thereof a new fund with an appropriation in the line item therein as follows" followed by a colon.

On page two, line six, following the word "fund", by striking out the number "8488" and inserting in lieu thereof the number "8854".

And,

On page two, line ten, following the words "bill is to", by striking out the remainder of the bill and inserting in lieu thereof the words "create a new fund in the budget act for the fiscal year ending the thirtieth day of June, two thousand three, and to provide for an appropriation therein of federal funds made available under the federal help America vote act in an amount of nine million dollars for expenditure during fiscal year two thousand three."

The bill, as amended in an effort to meet the objections of the Governor, was then put upon its passage.

On the passage of the bill, the Speaker propounded, "Shall the bill now pass, as amended, in an effort to meet the objections of the Governor?"

On this question, the yeas and nays were taken (Roll No. 707), and there were--yeas 98, nays none, absent and not voting 2, with the yeas, nays and absent and not voting being as follows:

Nays: None.

Absent And Not Voting: Cann and Schadler.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 3217) passed, as a result of the objections of the Governor.

On motion of Delegate Staton, the title of the bill was amended to read as follows:

Enrolled H. B. 3217 - "A Bill amending and supplementing chapter thirteen, acts of the Legislature, regular session, two thousand two, known as the budget bill, by adding thereto a new fund with an appropriation of federal funds out of the treasury from the balance of federal moneys remaining unappropriated for fiscal year ending the thirtieth day of June, two thousand three, to the new fund, designated secretary of state fund 8854, fiscal year 2003, organization 1600, for fiscal year ending the thirtieth day of June, two thousand three."

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 708), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Cann and Schadler.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 3217) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Conference Committee Report

Chairman Michael, from the Committee of Conference on matters of disagreement between the two houses, as to H. B. 2050, Budget Bill, making appropriations of public money out of the Treasury in accordance with Article VI, Section 51 of the Constitution,

Submitted the following report which was received:

Your Committee on Conference of the disagreeing votes of the two houses as to the amendment of the House to Committee Substitute for H. B. 2050 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses as follows:

That both houses recede from their respective positions as to the amendment of the House, striking out everything following the enacting clause and inserting new language, and agree to the same as follows:
TITLE I-GENERAL PROVISIONS.
Section 1. General policy.-The purpose of this bill is to appropriate money necessary for the economical and efficient discharge of the duties and responsibilities of the state and its agencies during the fiscal year two thousand four.

Sec. 2. Definitions.-For the purpose of this bill:

"Governor" shall mean the governor of the state of West Virginia.

"Code" shall mean the code of West Virginia, one thousand nine-hundred thirty-one, as amended.

"Spending unit" shall mean the department, bureau, division, office, board, commission, agency or institution to which an appropriation is made.

The "fiscal year two thousand four" shall mean the period from the first day of July, two thousand three, through the thirtieth day of June, two thousand four.

"General revenue fund" shall mean the general operating fund of the state and includes all moneys received or collected by the state except as provided in section two, article two, chapter twelve of the code or as otherwise provided.

"Special revenue funds" shall mean specific revenue sources which by legislative enactments are not required to be accounted for as general revenue, including federal funds.

"From collections" shall mean that part of the total appropriation which must be collected by the spending unit to be available for expenditure. If the authorized amount of collections is not collected, the total appropriation for the spending unit shall be reduced automatically by the amount of the deficiency in the collections. If the amount collected exceeds the amount designated "from collections," the excess shall be set aside in a special surplus fund and may be expended for the purpose of the spending unit as provided by article two, chapter five-a of the code.

Sec. 3. Classification of appropriations.-An appropriation for:

"Personal services" shall mean salaries, wages and other compensation paid to full-time, part- time and temporary employees of the spending unit but shall not include fees or contractual payments paid to consultants or to independent contractors engaged by the spending unit.

Unless otherwise specified, appropriations for "personal services" shall include salaries of heads of spending units.

"Annual increment" shall mean funds appropriated for "eligible employees" and shall be disbursed only in accordance with article five, chapter five of the code.

Funds appropriated for "annual increment" shall be transferred to "personal services" or other designated items only as required.

"Employee benefits" shall mean social security matching, workers' compensation, unemployment compensation, pension and retirement contributions, public employees insurance matching, personnel fees or any other benefit normally paid by the employer as a direct cost of employment. Should the appropriation be insufficient to cover such costs, the remainder of such cost shall be transferred by each spending unit from its "personal services" line item or its "unclassified" line item or other appropriate line item to its "employee benefits" line item. If there is no appropriation for "employee benefits," such costs shall be paid by each spending unit from its "personal services" line item, its "unclassified" line item or other appropriate line item. Each spending unit is hereby authorized and required to make such payments in accordance with the provisions of article two, chapter five-a of the code.

"BRIM Premiums" shall mean the amount charged as consideration for insurance protection and includes the present value of projected losses and administrative expenses. Premiums are assessed for coverages, as defined in the applicable policies, for claims arising from, inter alia, general liability, wrongful acts, property, professional liability and automobile exposures.

Should the appropriation for "BRIM Premiums" be insufficient to cover such cost, the remainder of such costs shall be transferred by each spending unit from its "personal services" line item, its "employee benefit" line item, its "unclassified" line item or any other appropriate line item to "BRIM Premiums" for payment to the Board of Risk and Insurance Management. Each spending unit is hereby authorized and required to make such payments.

Each spending unit shall be responsible for all contributions, payments or other costs related to coverage and claims of its employees for unemployment compensation. Such expenditures shall be considered an employee benefit.

"Current expenses" shall mean operating costs other than personal services and shall not include equipment, repairs and alterations, buildings or lands.

Each spending unit shall be responsible for and charged monthly for all postage meter service and shall reimburse the appropriate revolving fund monthly for all such amounts. Such expenditures shall be considered a current expense.

"Equipment" shall mean equipment items which have an appreciable and calculable period of usefulness in excess of one year.

"Repairs and alterations" shall mean routine maintenance and repairs to structures and minor improvements to property which do not increase the capital assets.

"Buildings" shall include new construction and major alteration of existing structures and the improvement of lands and shall include shelter, support, storage, protection or the improvement of a natural condition.

"Lands" shall mean the purchase of real property or interest in real property.

"Capital outlay" shall mean and include buildings, lands or buildings and lands, with such category or item of appropriation to remain in effect as provided by section twelve, article three, chapter twelve of the code.

From appropriations made to the spending units of state government, upon approval of the governor there may be transferred to a special account an amount sufficient to match federal funds under any federal act.

Appropriations classified in any of the above categories shall be expended only for the purposes as defined above and only for the spending units herein designated: Provided, That the secretary of each department and the commissioner of the bureau of commerce shall have the authority to transfer within the department or bureau those general revenue funds appropriated to the various agencies of the department or bureau: Provided, however, That no more than five percent of the general revenue funds appropriated to any one agency or board may be transferred to other agencies or boards within the department or bureau: Provided further, That the secretary of each department and the director, commissioner, executive secretary, superintendent, chairman or any other agency head not governed by a departmental secretary as established by chapter five-f of the code shall have the authority to transfer funds appropriated to "personal services" and "employee benefits" to other lines within the same account and no funds from other lines shall be transferred to the "personal services" line: Provided further, That the secretary of each department and the director, commissioner, executive secretary, superintendent, chairman or any other agency head not governed by a departmental secretary as established by chapter five-f of the code shall have the authority to transfer general revenue funds appropriated to "annual increment" to other general revenue accounts within the same department, bureau or commission for the purpose of providing an annual increment in accordance with article five, chapter five of the code: And provided further, That if the Legislature by subsequent enactment consolidates agencies, boards or functions, the secretary may transfer the funds formerly appropriated to such agency, board or function in order to implement such consolidation. No funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other account or fund specifically exempted by the Legislature from transfer, except that the use of the appropriations from the state road fund for the office of the secretary of the department of transportation is not a use other than the purpose for which such funds were dedicated and is permitted.

Appropriations otherwise classified shall be expended only where the distribution of expenditures for different purposes cannot well be determined in advance or it is necessary or desirable to permit the spending unit the freedom to spend an appropriation for more than one of the above classifications.

Sec. 4. Method of expenditure.-Money appropriated by this bill, unless otherwise specifically directed, shall be appropriated and expended according to the provisions of article three, chapter twelve of the code or according to any law detailing a procedure specifically limiting that article.

Sec. 5. Maximum expenditures.-No authority or requirement of law shall be interpreted as requiring or permitting an expenditure in excess of the appropriations set out in this bill.