(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
REGULAR SESSION, 2005
FIFTEENTH DAY
____________
Charleston, W. Va., Wednesday, February 23, 2005
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Minister Christopher Gallagher, Pine
Grove Church of Christ, Scott Depot, West Virginia.
Pending the reading of the Journal of Tuesday, February 22,
2005,
On motion of Senator Caruth, the Journal was approved and the
further reading thereof dispensed with.
On motion of Senator Love, the special order of business set
for this position on the calendar (consideration of executive
nominations) was postponed and made a special order of business for
Saturday, April 9, 2005, at 11 a.m.
The Senate proceeded to the second order of business and the
introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 2177--A Bill to amend and
reenact §17A-3-23 of the Code of West Virginia, 1931, as amended,
relating to establishing a new license plate that designates city
or municipality law-enforcement departments; and specifying the
design and one-time fee.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Finance.
The Senate proceeded to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 49, Repealing section of code relating to
inspection of jails.
Senate Bill No. 104, Repealing section of code relating to
working prisoners by county commissions.
Senate Bill No. 183, Allowing withdrawal from inmate's savings
account in certain cases.
And,
Senate Bill No. 184, Repealing section authorizing wardens to
offer rewards for escaped convicts.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Bill No. 94, Relating to school activities on
instructional support and enhancement days.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 94 (originating in the Committee
on Education)--A Bill to amend and reenact §18-5-45 of the Code of
West Virginia, 1931, as amended, relating to the school calendar;
and providing additional flexibility for instructional support and
enhancement days.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Robert H. Plymale,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Com. Sub. for Senate Bill No. 154, Relating to beneficial use
of water treatment plant sludge.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 162, Modifying time authority may allocate tax
credits under Capital Company Act.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Bill No. 212, Relating to incremental salary increases
for certain faculty members of higher education.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance.
Senator Minard, from the Committee on Banking and Insurance,
submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Senate Bill No. 229, Relating to reports of financial
institutions to Division of Banking.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Joseph M. Minard,
Chair.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Bill No. 248, Relating to requirement that technology
expenditures be made in accordance with Education Technology
Strategic Plan.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Robert H. Plymale,
Chair.
Senator Minard, from the Committee on Banking and Insurance,
submitted the following report, which was received:
Your Committee on Banking and Insurance has had under
consideration
Senate Bill No. 253, Permitting Insurance Commissioner waive
or reduce penalty for late filing of tax returns.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance.
Senator Minard, from the Committee on Banking and Insurance,
submitted the following report, which was received:
Your Committee on Banking and Insurance has had under
consideration
Senate Bill No. 254, Relating to reinsurance intermediaries.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but with the further recommendation that it first
be referred to the Committee on Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
On motion of Senator Minard, the bill (S. B. No. 254)
contained in the foregoing report from the Committee on Banking and
Insurance was then referred to the Committee on Finance, with
amendments from the Committee on Banking and Insurance pending.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and
referred to the appropriate committees:
By Senators Bailey, Kessler, Minard and Dempsey:
Senate Bill No. 255--
A Bill to amend and reenact §18B-10-7 of
the Code of West Virginia, 1931, as amended, relating to granting
tuition waivers to the children and spouses of parole and probation
officers killed in the line of duty.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Bailey, Dempsey, Fanning, Love and Sharpe:
Senate Bill No. 256--
A Bill to repeal §33-22-2a of the Code of
West Virginia, 1931, as amended; to amend said code by adding
thereto a new section, designated §33-17-6a; and to amend and
reenact §33-22-2 of said code, all relating to flood insurance;
requiring that certain insurance documents include a notice
regarding the absence of flood insurance and the possible
availability of such insurance from other sources; requiring that
farmer's mutual insurance companies include the notice; and
clarifying that the Insurance Fraud Prevention Act applies to
farmer's mutual insurance companies.
Referred to the Committee on Banking and Insurance.
By Senators Edgell, Bailey, Dempsey, Love, Facemyer, Fanning
and Sharpe:
Senate Bill No. 257--A Bill to amend and reenact §19-1A-3 and
§19-1A-3a of the Code of West Virginia, 1931, as amended, all
relating to digging, growing, collecting, gathering, possessing and selling ginseng; defining certain terms; authorizing Division of
Forestry to regulate ginseng; providing rule-making authority;
establishing ginseng harvest seasons; requiring permits to grow or
dig ginseng or to act as dealer; providing exceptions to the permit
requirement; setting forth other permit requirements; requiring
records be kept; authorizing certain inspections; requiring ginseng
to be certified; providing for denial, suspension or revocation of
permit; and establishing civil and criminal penalties.
Referred to the Committee on Agriculture; and then to the
Committee on the Judiciary.
By Senator Hunter:
Senate Bill No. 258--
A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §46A-2-140, relating to requiring that the required
monthly minimum payment on credit card debt be set at an amount
equal to the monthly interest accrued on the outstanding balance.
Referred to the Committee on the Judiciary.
By Senators Hunter, Dempsey and Unger:
Senate Bill No. 259--
A Bill to amend and reenact §30-7B-4,
§30-7B-8 and §30-7B-10 of the Code of West Virginia, 1931, as
amended, all relating to directing funds from the Center for
Nursing Fund to loan forgiveness programs; continuing the Center
for Nursing until 2013; and requiring the Center for Nursing to
collect information on workers' compensation-related injuries.
Referred to the Committee on Health and Human Resources; and
then to the Committee on Finance.
By Senator Harrison:
Senate Bill No. 260--
A Bill to amend and reenact §11-14C-5 of
the Code of West Virginia, 1931, as amended; and to amend and
reenact §11-15-9 of said code, all relating to reducing the excise
tax on all gasoline and special fuel sold in this state in the two
consecutive years before the tax is scheduled to be reduced from
the current twenty and one-half cents to fifteen and one-half
cents; providing for a graduated elimination of consumers sales tax
on food over a six-year period; and naming this legislation the
"Make West Virginia Competitive Tax Relief Act".
Referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of
the Executive):
Senate Bill No. 261--
A Bill to submit the Pension Bond
Amendment to the Constitution of the state to the voters of the
state for ratification or rejection at a special election to be
held throughout the state on the fourth day of June, two thousand
five; calling the special election; directing that the proposed
amendment be submitted to the voters of the state at the special
election and how such amendment is to be numbered, designated and
summarized; providing for publication of the proposed amendment and
publication of notice of the special election and the form thereof;
providing that no question or issue other than the ratification or
rejection of the proposed amendment shall be voted upon at the
special election; providing for an official ballot and ballot
labels; providing for one board of election officials in each precinct and for recounts; providing for the conduct of and
procedures for the special election; providing that the costs and
expenses of the special election be paid out of the State Treasury;
and providing for a proclamation of the result of the special
election by the Secretary of State.
Referred to the Committee on the Judiciary.
By Senators Foster, Love, Sharpe and Dempsey:
Senate Bill No. 262--
A Bill to amend and reenact §15-2A-2,
§15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-
2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of the Code of
West Virginia, 1931, as amended; to amend said code by adding
thereto three new sections, designated §15-2A-11a, §15-2A-11b and
§15-2A-21, all relating to amending definitions; acquiring
retirement credited service through member's use of accrued annual
or sick leave days; establishing starting date for payment of
annuity; clarifying disability provisions; and technical
corrections.
Referred to the Committee on Pensions; and then to the
Committee on Finance.
By Senator Foster:
Senate Bill No. 263--
A Bill to amend and reenact §5-5-3 of the
Code of West Virginia, 1931, as amended, relating to the rights of
members' unused, accrued leave in final average salary.
Referred to the Committee on Pensions; and then to the
Committee on Finance.
By Senators Foster and Dempsey:
Senate Bill No. 264--
A Bill to amend and reenact §18-7B-2,
§18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of the Code
of West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §18-7B-20, all relating to
amending certain definitions; clarifying participation requirement;
providing employer deadlines for deposit of contributions;
establishing when payments are to be made into and out of the
suspension account; adding the Internal Revenue Service provisions
concerning incidental death benefits; clarifying that all years of
employee service will be counted for vesting purposes; prohibiting
involuntary cash-outs effective the thirtieth day of June, two
thousand five; and technical corrections.
Referred to the Committee on Pensions; and then to the
Committee on Finance.
By Senators Helmick and Sharpe:
Senate Bill No. 265--
A Bill to amend and reenact §62-8-1 of
the Code of West Virginia, 1931, as amended, relating to including
jails within the context of certain criminal acts by incarcerated
persons; providing a specific crime for setting fire to a
correctional facility or jail; and including the Executive Director
of the Regional Jail and Correctional Facility Authority relative
to the applicability of the phrase "a person imprisoned or
otherwise in custody of" to the statutory provisions.
Referred to the Committee on the Judiciary.
By Senators Hunter, Minard, White, McKenzie and Dempsey:
Senate Bill No. 266--
A Bill to amend and reenact §21-11-4, §21-11-5, §21-11-7, §21-11-10 and §21-11-14 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto a new section, designated §21-11-21, all relating to
licensed contractors; increasing the membership of the West
Virginia Contractor's Licensing Board; individuals eligible to take
examination; additional information requested from applicants;
presumption in disputes without written contract; criteria for
rejecting license application or renewal; and proof of license
prerequisite to civil action.
Referred to the Committee on Government Organization; and then
to the Committee on the Judiciary.
By Senators Kessler, Helmick, Plymale, Prezioso, Boley,
McKenzie, Minard, Dempsey, Barnes and Jenkins:
Senate Bill No. 267--A Bill to amend and reenact §49-5-13d of
the Code of West Virginia, 1931, as amended, relating to teen court
programs; and authorizing counties to adopt a mandatory fee to fund
such teen court programs.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Kessler, Helmick, Plymale, Prezioso, Boley,
McKenzie, Unger, Foster, Barnes and Jenkins:
Senate Bill No. 268--A Bill to amend and reenact §11-16-19 of
the Code of West Virginia, 1931, as amended; and to amend and
reenact §60-3A-24 of said code, all relating to underage possession
of nonintoxicating beer and alcoholic liquor; and conforming state
law to federal requirements by providing that violation by a person under the age of eighteen constitutes a status offense instead of
a misdemeanor.
Referred to the Committee on the Judiciary.
By Senators Bowman, McKenzie, Kessler, Edgell, McCabe and
Helmick:
Senate Joint Resolution No. 8--
Proposing an amendment to the
Constitution of the State of West Virginia, amending section 1,
article X thereof, relating to allowing the county of Ohio to
institute a two-rate property tax levy to replace current
constitutional property tax levies in that county only; requiring
approval by the voters of Ohio County; permitting lower rates on
improvements than on land; numbering and designating such proposed
amendment; and providing a summarized statement of the purpose of
such proposed amendment.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
Senators Prezioso, Hunter, Sharpe, Unger, Boley, Foster,
Dempsey and Jenkins offered the following resolution:
Senate Concurrent Resolution No. 26--Requesting the Joint
Committee on Government and Finance direct the Legislative
Oversight Commission on Health and Human Resources Accountability
to oversee the development of the state Mental Health Plan to
ensure that the process moves toward the development of improved
care for the mental health needs of the citizens of West Virginia.
Whereas, The Mental Health Plan, the State Health Plan, the
(Behavioral) Health Criteria for Performance Excellence and Healthy People 2010, as well as other goal-setting recommendation plans,
contain some discussion of the topic of mental health, the degree
of which depends on the particular document; and
Whereas, Community-based mental health care creates an
environment of stability for those afflicted with mental health
problems who receive family-based treatment in their communities of
residence; and
Whereas, Federal Comprehensive Community Mental Health
Services Program grants are available to develop comprehensive,
community-based systems of care for youth with serious emotional
disturbances and their families, but may only be applied to in-
state treatment. According to the Department of Health and Human
Resources, over 400 juveniles are in out-of-state care facilities
at any given time, for a total cost of more than $22 million per
year in out-of-state expenditures, due to a lack of adequate care
systems within the state; and
Whereas, The appropriate treatment of juveniles with serious
emotional disturbances and their families requires a collaborative
state effort from multiple agencies, including, but not limited to:
The Department of Health and Human Resources, the Bureau for
Behavioral Health and Health Facilities, the Bureau for Children
and Families, the Department of Education and the Division of
Juvenile Services; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to direct the Legislative Oversight Commission on Health and Human Resources Accountability to oversee the development of
the state Mental Health Plan to ensure that the process moves
toward the development of improved care for the mental health needs
of the citizens of West Virginia; and, be it
Further Resolved, That the Department of Health and Human
Resources report to the Legislative Oversight Commission on Health
and Human Resources Accountability on September 1, 2005, and
December 31, 2005, on the status and implementation of the Mental
Health Plan; and, be it
Further Resolved, The Department of Health and Human Resources
should explore the possibilities of developing a comprehensive
multiagency mental health plan in the State of West Virginia,
identify the core services needed in West Virginia communities in
order to provide adequate care to February 22, 2005residents,
address the development of community-based treatment options and
financial assistance opportunities available to avoid out-of-state
placements and make every effort to establish a financial base that
can adequately fund needed mental health services; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senators Edgell and Kessler offered the following resolution:
Senate Resolution No. 9--
Encouraging the Ormet Corporation
enter into meaningful discussions to sell the Ormet Reduction and
Rolling Mill facilities to entities which will continue its
operation to the benefit of workers, retirees, local businesses and
the surrounding communities.
Whereas, The Ormet Reduction and Rolling Mill facilities in
Hannibal, Ohio, have, for over a quarter century, economically
benefitted the citizens of Wetzel, Marshall and Tyler counties of
West Virginia; and
Whereas, Its 1,300 employees and the surrounding communities
in West Virginia suffered a loss of income and tax revenue with the
shutdown of the Ormet Reduction and Rolling Mill facilities; and
Whereas, Retiree benefits are now threatened by the bankruptcy
of Ormet Corporation; and
Whereas, Parties have shown an interest in purchasing the
Ormet Reduction and Rolling Mill facilities at Hannibal, Ohio, and
subsequently are negotiating a fair and equitable agreement with
the workers of the facilities; therefore, be it
Resolved by the Senate:
That the Senate hereby encourages the Ormet Corporation to
enter into meaningful discussions to sell the Ormet Reduction and
Rolling Mill facilities to entities which will continue its
operation to the benefit of workers, retirees, local businesses and the surrounding communities; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Mike Williams, Interim President and
Chief Executive Officer of the Ormet Corporation, and the Honorable
Barbara J. Sellers, Judge, United States Bankruptcy Court, Southern
District of Ohio.
At the request of Senator Kessler, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senators Sprouse, Dempsey, Minear, Unger, Tomblin (Mr.
President), Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem,
Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick,
Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard,
Oliverio, Plymale, Prezioso, Sharpe, Weeks, White and Yoder offered
the following resolution:
Senate Resolution No. 10--
Designating the month of March,
2005, as "American Red Cross Month".
Whereas, The American Red Cross was founded in 1881 and
chartered by the United States Congress in 1905; and
Whereas, The American Red Cross, one of the most recognized
humanitarian organizations, provides food, clothing, shelter and
mental health support to victims of disasters; and
Whereas, The American Red Cross has trained thousands of West
Virginians in CPR, first aid, lifeguard techniques, water safety
and HIV/AIDS education; and
Whereas, The American Red Cross continues to recruit West Virginians in seeking blood donations and blood products for
critical medical treatments; and
Whereas, The generous contributions of time and money by the
American people help the Red Cross restore vital services to
families in times of need; therefore, be it
Resolved by the Senate:
That the Senate hereby designates the month of March, 2005, as
"American Red Cross Month"; and, be it
Further Resolved, That the Senate hereby recognizes the many
contributions of the American Red Cross to the State of West
Virginia, the United States of America and the world; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the appropriate representatives of the
American Red Cross.
At the request of Senator Sprouse, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Petitions
Senators Kessler and Edgell presented a petition from Jan
Watson and numerous West Virginia residents, requesting the
Legislature to enact stricter sentencing laws pertaining to drunk
driving offenses.
Referred to the Committee on the Judiciary.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 269 (originating in the Committee on Finance)-
-A Bill supplementing, amending, reducing and increasing items of
the existing appropriations from the State Road Fund to the
Department of Transportation, Division of Highways, fund 9017,
fiscal year 2005, organization 0803, by supplementing and amending
the appropriations for the fiscal year ending the thirtieth day of
June, two thousand five.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 17, Establishing requirements
for receipt of public money by business entities.
On second reading, coming up in regular order, was read a
second time.
On motions of Senators Jenkins and Oliverio, the following
amendment to the bill was reported by the Clerk and adopted:
On page three, section seventeen, line twenty-two, after the word "entity" by inserting the words "but does not include payment
to a business entity that is a vendor of the state or a political
subdivision".
At the request of Senator Bowman, and by unanimous consent,
the bill (Com. Sub. for S. B. No. 17), as just amended, was
advanced to third reading with the right for further amendments to
be considered on that reading.
The Senate proceeded to the tenth order of business.
Senate Bill No. 122, Allowing certain state-chartered banks to
organize as limited liability companies.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
The Senate proceeded to the eleventh order of business and the
introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senator Plymale.
Thereafter, at the request of Senator Helmick, and by
unanimous consent, the remarks by Senator Plymale were ordered
printed in the Appendix to the Journal.
Pending announcement of meetings of standing committees of the
Senate, including a minority party caucus,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Thursday, February 24, 2005, at 11 a.m.
____________