__________*__________

 

 

 

Thursday, March 3, 2016

FIFTY-FIRST DAY

[MR. SPEAKER, MR. ARMSTEAD, IN THE CHAIR]

 

 

            The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Tim Armstead, Speaker.

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

            The Clerk proceeded to read the Journal of Wednesday, March 2, 2016, being the first order of business, when the further reading thereof was dispensed with and the same approved.

Committee Reports

            Delegate McCuskey, Chair of 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 3rd day of March, 2016, 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:

            (Com. Sub. for S. B. 10), Creating Unborn Child Protection from Dismemberment Abortion Act,

 

            And,

            (S. B. 558), Maintaining solvency of Unemployment Compensation Fund.

Delegate Howell, Chair of the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration:

Com. Sub. for S. B. 259, Amending Unfair Trade Practices Act,

And reports the same back, with amendment, with the recommendation that it do pass, as amended, and with the recommendation that second reference to the Committee on the Judiciary be dispensed with.

Delegate Cowles asked unanimous consent that second reference of the bill to the Committee on the Judiciary be dispensed with, objection being heard.

The bill (Com. Sub. for S. B. 259) was then referred to the Committee on the Judiciary.

Delegate Hamilton, Chair of the Committee on Agriculture and Natural Resources, submitted the following report, which was received:

Your Committee on Agriculture and Natural Resources has had under consideration:

S. B. 334, Identifying coyote as fur-bearing animal and woodchuck as game animal,

And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on Government Organization.

In accordance with the former direction of the Speaker, the bill (S. B. 334) was referred to the Committee on Government Organization.

Delegate Hamilton, Chair of the Committee on Agriculture and Natural Resources, submitted the following report, which was received:

Your Committee on Agriculture and Natural Resources has had under consideration:

S. B. 333, Taking and registering of wildlife,

And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on the Judiciary.

            In accordance with the former direction of the Speaker, the bill (S. B. 333) was referred to the Committee on the Judiciary.

Delegate Hamilton, Chair of the Committee on Agriculture and Natural Resources, submitted the following report, which was received:

Your Committee on Agriculture and Natural Resources has had under consideration:

Com. Sub. for S. B. 43, Clarifying means of posting to prohibit hunting or trespassing,    

And,

S. B. 336, Relating to crossbow hunting,

And reports the same back with the recommendation that they each do pass, but that they first be referred to the Committee on the Judiciary.

            In accordance with the former direction of the Speaker, the bills (Com. Sub. for S. B. 43 and S. B. 336) were each referred to the Committee on the Judiciary.

Delegate Miller, Chair of the Committee on Small Business, Entrepreneurship and Economic Development, submitted the following report, which was received:

Your Committee on Small Business, Entrepreneurship and Economic Development has had under consideration:

S. B. 426, Continuing Office of Coalfield Community Development,

And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on Government Organization.

            In accordance with the former direction of the Speaker, the bill (S. B. 426) was referred to the Committee on Government Organization.

Conference Committee Report Availability

            At 11:31 a.m., the Clerk announced availability in his office of the report of the Committee of Conference on S. B. 509, Removing 10-day requirement Division of Labor has to inspect amusement rides and attractions.

Messages from the Executive

            Mr. Speaker, Mr. Armstead, presented a communication from His Excellency, the Governor, advising that on March 1, 2016, he approved Com. Sub. for S. B. 309, S. B. 341, S. B. 449, S. B. 450 and S. B. 451; and on March 2, 2016, he approved Com. Sub. for S. B. 7, Com. Sub. for S. B. 14, Com. Sub. for S. B. 146, Com. Sub. for S. B. 150, S. B. 351, Com. Sub. for S. B. 369 and S. B. 462.

            The Speaker then 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

February 17, 2016

Veto Message

The Honorable Tim Armstead

Speaker, West Virginia House of Delegates

Room 228M, Building 1

State Capitol Complex

1900 Kanawha Blvd., East

Charleston, West Virginia 25305

            Re:      Enrolled Committee Substitute for House Bill 4007

Dear Speaker Armstead:

            Pursuant to the provisions of section fourteen, article VII of the Constitution of West Virginia, I hereby disapprove and return the Enrolled Committee Substitute for House Bill 4007.

            The general aim of this bill—establishing competitive bidding and qualification procedures for the hiring of private legal counsel by the Attorney General in cases in which the state and its agencies are plaintiffs—is commendable.  I support wholeheartedly including procedures in the West Virginia Code to ensure that the state and its offices and agencies receive competent counsel at competitive rates.

            My issue with the bill is the extent to which it permits, perhaps inadvertently, the Attorney General to ignore a state office or agency client’s authority, decisions, and directives in a case, in contravention of the Rules of Professional Conduct governing West Virginia lawyers.  For example, the following broad language appears in the bill’s §5-3-3(b):  “All special assistant attorneys general appointed shall serve at the will and pleasure of the Attorney General and shall perform such duties as the Attorney General may require of them.”  See p. 2, lines 11-13.  This statement disregards that there are circumstances where special assistant attorneys general are appointed for state offices and agencies, including the Governor’s Office, because the Attorney General’s Office has a conflict or has taken a contrary position in a case.  In such circumstances, the special assistant attorneys general serve at the will and pleasure of their client state offices and agencies, not the Attorney General.  As drafted and passed by the Legislature, §5-3-3(b) is overbroad and could occasion conflicts of interest.

Furthermore, Enrolled Committee Substitute for House Bill 4007 provides that “[t]he Attorney General, or the deputy or assistant Attorney General involved in the case, shall retain control over the course and conduct of the case.”  See §5-3-3a(g)(1), p. 5, lines 76-77.  The bill also states that “[t]he Attorney General, or the deputy or assistant Attorney General involved in the case, retains veto power over any decisions made by any appointed private attorneys.”  Id. at § 5-3-3a(g)(3), p. 5, lines 80-81.

The Rules of Professional Conduct, however, make it clear that “a lawyer [whether it be the Attorney General, his assistant, or outside private counsel] shall abide by a client’s decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to be pursued.”  See Rule 1.2(a), Rules of Professional Conduct (emphasis added).  Rule 1.2(a) thus “confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations.”  Id. at Comment [1] (emphasis added).

In other words, it is the state office or agency client—not the Attorney General—“who retains control over the course and conduct of the case,” and who “retains veto power over any decision made by any appointed private attorneys,” subject, of course, to the law and applicable ethical obligations.  See §5-3-3(a)(g)(1) and (3), p. 5, lines 76-81.

            Enrolled Committee Substitute for House Bill 4007 is problematic because it appears to cede state office and agency decision-making authority to the Attorney General.  This problem is exacerbated because West Virginia Code §5-3-3(c), which is implicated in the bill, expressly provides that the bill’s language trumps all other laws that are inconsistent with its provisions, such as the Rules of Professional Responsibility.  See §5-3-3(c), p. 2, lines 14-15 (“All laws or parts of laws inconsistent with the provisions hereof are hereby amended to be in harmony with the provisions of this section.”).

Finally, the bill contains a technical issue because it is silent as to its impact on existing private counsel contracts.  The bill should contain a provision explicitly stating that it does not impair those contracts.  See W. Va. Const. Art. 3, §4 (prohibiting the passage of laws impairing contractual obligations).

In sum, I believe Enrolled Committee Substitute for House Bill 4007 contains overly-general language that fails to account for those scenarios where special assistant attorneys general cannot—for practical and ethical reasons—serve at the will and pleasure of the Attorney General.  The bill also infringes on state office and agency client decisions and directives and is at odds with the Rules of Professional Conduct adopted by our Supreme Court of Appeals.  Lastly, the bill is flawed technically because it could be read to impair existing contracts.  For these reasons, I must disapprove the bill and return it.  However, I welcome the Legislature to repair the issues I have addressed herein and then return the bill to my desk for signature.

Sincerely,

                                                                                    Earl Ray Tomblin,

                                                                                          Governor.

            On motion of Delegate Cowles, in accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider Enrolled Committee Substitute for House Bill 4007, in an effort to meet the objections of the Governor.

            On motion of Delegate Cowles, Com. Sub. for H. B. 4007 was amended, in an effort to meet the objections of the Governor, by amending the bill on page two, section three, line thirteen, following the word “them”, by replacing the period with a colon and inserting the following proviso:

            “Provided, That the appointment of a special assistant Attorney General under this section shall not be construed to alter, inhibit or expand the attorney-client relationship set forth in this article between the Attorney General and the state in the control or conduct of a cause of action.”

On page five, section three-a, line seventy-six, by striking out subdivision (1) in its entirety and inserting in lieu thereof a new subdivision (1) to read as follows:

            “(1) The Attorney General, or the deputy or assistant Attorney General involved in the case, shall retain management and supervisory authority over the private attorney” and a semicolon.

            On page five, section three-a, line eighty, by striking out subdivision (3) in its entirety and renumbering the remaining subdivision.

            And,

            On page eight, section three-a, following line one hundred fifty, by inserting two subsections, designated subsections (p) and (q), to read as follows:

            “(p) The requirements and procedures established in this section are inapplicable to and shall not impair any contingency fee legal arrangement or contract awarded prior to the effective date of this section.

(q) The appointment of a special assistant Attorney General under this section shall not be construed to alter, inhibit or expand the attorney-client relationship set forth in this article between the Attorney General and the state in the control or conduct of a cause of action.”

            The question being on the passage of the bill, as amended, the Speaker propounded, “Shall the bill pass, in an effort to meet the objections of the Governor?”

            On this question, the yeas and nays were taken (Roll No. 351), and there were--yeas 85, nays 14, absent and not voting 1, with the yeas, nays and absent and not voting being as follows:

Yeas: Amber, Anderson, Arvon, Atkinson, Azinger, Bates, Blackwell, Blair, Boggs, Border, Butler, Byrd, Cadle, Campbell, Canterbury, Cooper, Cowles, Deem, Duke, Eldridge, Ellington, Espinosa, A. Evans, D. Evans, Faircloth, Fast, Flanigan, Folk, Foster, Frich, Gearheart, Guthrie, Hamilton, Hamrick, Hanshaw, Hartman, Hicks, Hill, Householder, Howell, Ihle, Ireland, Kelly, Kessinger, Kurcaba, Lane, Manchin, McCuskey, McGeehan, Miller, Moffatt, Moye, E. Nelson, J. Nelson, O’Neal, Overington, Perry, Pethtel, Phillips, Pushkin, Reynolds, Rodighiero, Rohrbach, Romine, Rowan, Shaffer, Shott, Skinner, P. Smith, R. Smith, Sobonya, Stansbury, Statler, Storch, Summers, Trecost, Upson, Wagner, Walters, Waxman, Weld, Westfall, P. White, Zatezalo and Mr. Speaker, Mr. Armstead.

Nays: Caputo, Ferro, Fleischauer, Fluharty, Hornbuckle, Longstreth, Lynch, Marcum, Miley, Moore, Morgan, Perdue, Rowe and Sponaugle.

Absent and Not Voting: B. White.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4007) 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.

Messages from the Senate

A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had rejected a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4012, West Virginia Religious Freedom Restoration Act.

            A message from the Senate, by

            The Clerk of the Senate, announced the passage by the Senate, to take effect July 1, 2016, and requested the concurrence of the House of Delegates in the passage, of

            Com. Sub. for S. B. 602 - “A Bill to amend and reenact §29-12B-10 of the Code of West Virginia, 1931, as amended; to amend and reenact §29-12D-1 and §29-12D-3 of said code; to amend said code by adding thereto a new section, designated §29-12D-1a; to amend and reenact §55-7B-9 and §55-7B-9c of said code; and to amend and reenact §59-1-11 and §59-1-28a of said code, all relating to the Patient Injury Compensation Fund; transferring funds from Medical Liability Fund to Patient Injury Compensation Fund and thereafter closing Medical Liability Fund; prohibiting direct recover of legal fees from Patient Injury Compensation Fund; providing that the board may not compensate claimants who have not filed a claim with the fund by a specific date; providing an assessment on medical licenses; providing exceptions to assessment on medical licenses; prohibiting granting or renewal of medical license for failure to pay assessment; providing an assessment on trauma patients treated at designated trauma centers; providing an assessment on claims filed under the Medical Professional Liability Act; defining “qualifying claim”; defining “date” for purposes of determining applicability of section; directing entities collecting assessments to remit payment to Board of Risk and Insurance Management; setting schedule for remittance of payments to Board of Risk and Insurance Management; providing termination of assessments upon certain deadlines being met; limiting jurisdiction of court reviewing award from board to approval of final award; clarifying authority of Board of Risk and Insurance Management make periodic payments or place claims in nonpayment status in its discretion; permitting trier of fact to consider fault of all alleged parties, including fault of persons who have settled claims with plaintiff arising out of same medical injury, in assessing percentages of fault; permitting clarifying manner in which damages are to be determined with respect to each defendant for purposes of entering judgment when there is no pre-verdict settlement; providing for limit on liability for economic damages in causes of actions against a trauma facility to be adjusted for inflation annually beginning January 1, 2016; setting limit on inflation increase; authorizing plaintiff who suffers economic damages in excess of limit of liability to collect economic damages up to an additional $1 million; clarifying that additional economic liability limit is not subject to inflation; providing that a claimant’s attorney fees may not be paid out of the fund; providing that several liability applies in all cases under the Medical Professional Liability Act; increasing filing fee for causes of action under the Medical Professional Liability Act; and directing clerk of court to deposit a portion of the filing fee into Patient Injury Compensation Fund”; which was referred to the Committee on the Judiciary then Finance.

            A message from the Senate, by

            The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage, of

            Com. Sub. for S. B. 686 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §7-1-3pp; and to amend said code by adding thereto a new section, designated §8-12-5g, all relating to authorizing local governing authorities to hold sanctioned motor vehicle races on public roads or municipal streets or airports under their jurisdiction; requiring issuance of permit in relation to racing event; providing immunity from damages; and declaring that an authorized racing event is not a nuisance or subject to speed restrictions”; which was referred to the Committee on the Judiciary.

            A message from the Senate, by

            The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage, of

            S. B. 701 - “A Bill to repeal §7-25-15, §7-25-17, §7-25-19, §7-25-21 and §7-25-22 of the Code of West Virginia, 1931, as amended; to amend and reenact §7-25-3 and §7-25-8 of said code; and to amend and reenact §60-5-1, §60-5-2, §60-5-3, §60-5-4, §60-5-6, §60-5-7 and §60-5-8 of said code, all relating generally to resort area districts; removing resort area district authority to conduct property assessments; authorizing resort area districts to hold local option elections as to whether or not the sale of alcoholic beverages may be sold within the district; and providing voting mechanisms therefor”; which was referred to the Committee on the Judiciary.

            A message from the Senate, by

            The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage, of

            S. B. 702 - “A Bill to amend and reenact §44-8-1 of the Code of West Virginia, 1931, as amended, relating to providing that, in instances where real estate, or an interest therein, is devised to be sold and the proceeds thereof distributed, title to said real estate passes to those individuals entitled to receive the proceeds of sale if the personal representative of the estate does not do so within five years of the closing of an estate”; which was referred to the Committee on the Judiciary.

            A message from the Senate, by

            The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage, of

            S. B. 703 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §59-1-2b, relating to requiring the Secretary of State to develop a mechanism for the deposit of the overpayment of certain fees into the Children’s Trust Fund; and requiring that the person due the refund voluntarily and affirmatively chooses to donate the amount of the overpayment”; which was referred to the Committee on Finance.

            A message from the Senate, by

            The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage, of

            S. B. 705 - “A Bill to amend and reenact §11-13A-3 of the Code of West Virginia, 1931, as amended, relating to reducing the severance tax on coal to three percent over two years; and specifying effective dates”; which was referred to the Committee on Finance.

A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of a joint resolution, which was read by its title and referred to the Committee on Agriculture and Natural Resources then Finance as follows:

            Com. Sub. for S. J. R. 14 - “ Proposing an amendment to the Constitution of the State of West Virginia amending article III thereof, by adding thereto a new section, designated section twenty-three, relating to the right to farm and ranch; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.”

Petitions

Delegate Bates presented a petition from over 5,000 West Virginia citizens concerned about the grave toll that tobacco use is having on our communities, our economies and our personal health and urging members of the WV House of Delegates to resist any attempt to weaken smoke-free indoor air in West Virginia’s communities or undermine the authority of our local Boards of Health to create smoke-free indoor regulations; which was referred to the Committee on Health and Human Resources.

Conference Committee Report

            Delegate Lane, from the Committee of Conference on matters of disagreement between the two houses, as to

            Com. Sub. for H. B. 2800, Adding law-enforcement officers' contact information and names of family members to the list of exemptions from public records requests,

            Submitted the following report, which was received:

            Your Committee of Conference on the disagreeing votes of the two houses as to the amendment of the Senate to Committee Substitute for House Bill No. 2800 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 Senate striking out everything following the enacting clause and inserting new language, and agree to the same as follows:

                That §29B-1-2 and §29B-1-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

article 1. public records.

'29B‑1‑2. Definitions.

As used in this article:

(1) ACustodian@ means the elected or appointed official charged with administering a public body.

(2) “Law-enforcement officer” shall have the same definition as this term is defined in W.Va. Code §30-29-1: Provided, That for purposes of this article, “law-enforcement officer” shall additionally include those individuals defined as “chief executive” in W.Va. Code §30-29-1.

(2) (3) APerson@ includes any natural person, corporation, partnership, firm or association.

(3) (4) APublic body@ means every state officer, agency, department, including the executive, legislative and judicial departments, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission council or agency thereof; and any other body which is created by state or local authority or which is primarily funded by the state or local authority.

(4) (5) APublic record@ includes any writing containing information prepared or received by a public body, the content or context of which, judged either by content or context, relates to the conduct of the public's business.

(5) (6) AWriting@ includes any books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.

'29B‑1‑4. Exemptions.

(a) There is a presumption of public accessibility to all public records, subject only to the following categories of information which are specifically exempt from disclosure under the provisions of this article:

(1) Trade secrets, as used in this section, which may include, but are not limited to, any formula, plan pattern, process, tool, mechanism, compound, procedure, production data or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors;

(2) Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure of the information would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in this particular instance: Provided, That this article does not preclude an individual from inspecting or copying his or her own personal, medical or similar file;

(3) Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination;

(4) Records of law‑enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law‑enforcement agencies which are maintained for internal use in matters relating to law enforcement;

(5) Information specifically exempted from disclosure by statute;

(6) Records, archives, documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological, paleontological and battlefield sites or constituting gifts to any public body upon which the donor has attached restrictions on usage or the handling of which could irreparably damage the record, archive, document or manuscript;

(7) Information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions, except those reports which are by law required to be published in newspapers;

(8) Internal memoranda or letters received or prepared by any public body. ;

(9) Records assembled, prepared or maintained to prevent, mitigate or respond to terrorist acts or the threat of terrorist acts, the public disclosure of which threaten the public safety or the public health;

(10) Those portions of records containing specific or unique vulnerability assessments or specific or unique response plans, data, databases and inventories of goods or materials collected or assembled to respond to terrorist acts; and communication codes or deployment plans of law‑enforcement or emergency response personnel;

(11) Specific intelligence information and specific investigative records dealing with terrorist acts or the threat of a terrorist act shared by and between federal and international law‑enforcement agencies, state and local law‑enforcement and other agencies within the Department of Military Affairs and Public Safety;

(12) National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism;

(13) Computing, telecommunications and network security records, passwords, security codes or programs used to respond to or plan against acts of terrorism which may be the subject of a terrorist act;

(14) Security or disaster recovery plans, risk assessments, tests or the results of those tests;

(15) Architectural or infrastructure designs, maps or other records that show the location or layout of the facilities where computing, telecommunications or network infrastructure used to plan against or respond to terrorism are located or planned to be located;

(16) Codes for facility security systems; or codes for secure applications for facilities referred to in subdivision (15) of this subsection;

(17) Specific engineering plans and descriptions of existing public utility plants and equipment;

(18) Customer proprietary network information of other telecommunications carriers, equipment manufacturers and individual customers, consistent with 47 U.S.C. '222; and

(19) Records of the Division of Corrections, Regional Jail and Correctional Facility Authority and the Division of Juvenile Services relating to design of corrections, jail and detention facilities owned or operated by the agency, and the policy directives and operational procedures of personnel relating to the safe and secure management of inmates or residents, that if released, could be used by an inmate or resident to escape a facility, or to cause injury to another inmate, resident or to facility personnel. ;

(20) Information related to applications under section four, article seven, chapter sixty-one of this code, including applications, supporting documents, permits, renewals, or any other information that would identify an applicant for or holder of a concealed weapon permit: Provided: That information in the aggregate that does not identify any permit holder other than by county or municipality is not exempted: Provided, however, That information or other records exempted under this subdivision may be disclosed to a law enforcement agency or officer: (i) to determine the validity of a permit, (ii) to assist in a criminal investigation or prosecution, or (iii) for other lawful law-enforcement purposes.; and

(21) Personal information of law-enforcement officers maintained by the public body in the ordinary course of the employer-employee relationship. As used in this paragraph, “personal information” means a law-enforcement officer’s social security number, health information, home address, personal address, personal telephone numbers and personal email addresses and those of his or her spouse, parents and children as well as the names of the law-enforcement officer’s spouse, parents and children.

(b) As used in subdivisions (9) through (16), inclusive, subsection (a) of this section, the term Aterrorist act@ means an act that is likely to result in serious bodily injury or damage to property or the environment and is intended to:

(1) Intimidate or coerce the civilian population;

(2) Influence the policy of a branch or level of government by intimidation or coercion;

(3) Affect the conduct of a branch or level of government by intimidation or coercion; or

(4) Retaliate against a branch or level of government for a policy or conduct of the government.

(c) The provisions of subdivisions (9) through (16), inclusive, subsection (a) of this section do not make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat of a terrorist act which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity.”

And,

            That both houses recede from their respective positions as to the title of the bill and agree to a new title as follows: 

Com. Sub. for H. B. 2800 - “A Bill to amend and reenact §29B-1-2 and §29B-1-4 of the Code of West Virginia, 1931, as amended, all relating to law-enforcement officers’ personal information; defining terms; and adding personal information of law-enforcement officers and certain family members of law-enforcement officers maintained by the public body in the ordinary course of the employer-employee relationship to the list of exemptions from public records requests.”

                                                                                    Respectfully submitted,

            Patrick Lane,                                                         Bob Ashley,

            Roger Hanshaw,                                                   Robert Karnes,     

            Steve Shaffer,                                                      Mike Woelfel,

               Conferees on the part of                                          Conferees on the part of

                    the House of Delegates.                                        Senate.        

 

            On motion of Delegate Lane, the report of the Committee of Conference was adopted.

            The bill, as amended by said report, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 352), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent and Not Voting: B. White.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub, for H. B. 2800) passed.

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

Special Calendar

Third Reading

            Com. Sub. for S. B. 594, Requiring State Auditor consider for payment claim submitted by electronically generated invoice; on third reading, coming up in regular order, was read a third time.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 353), 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: Moffatt and B. White.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 594) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

            Com. Sub. for H. B. 4608, Requiring the State Auditor to consider for payment a claim submitted by an electronically generated invoice; on third reading, coming up in regular order, was, on motion of Delegate Cowles, tabled.

Second Reading

            Com. Sub. for S. B. 13, Increasing penalties for overtaking and passing stopped school buses; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page one, immediately following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That §17C-12-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 12. SPECIAL STOPS REQUIRed

§17C-12-7. Overtaking and passing school bus; penalties; signs and warning lights upon buses; requirements for sale of buses; mounting of cameras; educational information campaign; limitation on idling.

(a) This law shall be known as Haven’s Law

(b) The driver of a vehicle, upon meeting or overtaking from either direction any school bus which has stopped for the purpose of receiving or discharging any school children, shall stop the vehicle before reaching the school bus when there is in operation on the school bus flashing warning signal lights, as referred to in section eight of this article, and the driver may not proceed until the school bus resumes motion, or is signaled by the school bus driver to proceed or the visual signals are no longer actuated. This section applies wherever the school bus is receiving or discharging children including, but not limited to, any street, highway, parking lot, private road or driveway: Provided, That the driver of a vehicle upon a controlled access highway need not stop upon meeting or passing a school bus which is on a different roadway or adjacent to the highway and where pedestrians are not permitted to cross the roadway.

(b) (c)(1) Where the actual identity of the operator of a motor vehicle operated in violation of subsection (a) of this section is known Any driver acting in violation of subsection (a) of this section then that driver is guilty of a misdemeanor and, upon conviction for a first offense, shall be fined not less than $150 or more than $500, or confined not less than two days nor more than six months and shall be fined not less than $200 nor more than $2,500: Provided, That such jail term shall include actual confinement of not less than twenty-four hours: Provided, however, That a person sentenced pursuant to this subsection shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense. Upon conviction of a second violation of subsection (a), the driver shall be fined $500, or confined in jail not more than six months, or both fined and confined in jail for not more than one week nor more than one year, and shall be fined not less than $2,500 nor more than $5,000. Upon conviction of a third or subsequent violation of subsection (a), the driver shall be fined $500, and confined not less than twenty-four hours in jail but not more than six months is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two nor more than five years and the court may, in its discretion, impose a fine of not less than $5,000 nor more than $10,000.

(2) In addition to the penalties prescribed in subdivision (1) of this subsection, the Commissioner of Motor Vehicles shall, upon conviction, suspend the driver’s license of the person so convicted:

(1) Of a first offense under subdivision (1) of this subsection, for a period of thirty days;

(2) Of a second offense under subdivision (1) of this subsection, for a period of ninety days; or

(3) Of a third or subsequent offense under subdivision (1) of this subsection, for a period of one hundred and eighty days.

 (c) (d) In addition to the penalties prescribed in subsections (b) of this section, the Commissioner of Motor Vehicles shall, upon conviction, suspend the driver’s license of the person so convicted:

(1) Of a first offense under subsection (b) of this section, for a period of thirty days;

(2) Of a second offense under subsection (b) of this section, for a period of ninety days; or

(3) Of a third or subsequent offense under subsection (b) of this section, for a period of one hundred and eighty days.

Where the actual identity of the operator of a motor vehicle operated in violation of subsection (a) of this section is unknown but the license plate number of the motor vehicle is known, it may be inferred that the operator was an owner or lessee of the motor vehicle

(1) For a first offense under subsection (b) of this section, and shall assess fees of not less than $200 nor more than $2,500;

(2) For a second offense under subsection (b) of this section, and shall assess fees of not less than $2,500 nor more than $5,000; and

(3) For a third or subsequent offense under subsection (b) of this section, and shall assess fees of not less than $5,000 nor more than $10,000.

Where there is more than one registered owner or lessee, the inference created by this subsection shall apply to the first listed owner or lessee as found on the motor vehicle registration:

 (d) (e) Any driver of a vehicle who willfully violates the provisions of subsection (a) of this section and the violation causes serious bodily injury to any person other than the driver, is guilty of a felony and, upon conviction, shall be confined in a state correctional facility not less than one two years nor more than three ten years and fined not less than $500 $2,000 nor more than $2,000 $15,000Any driver of a vehicle who willfully violates the provisions of subsection (a) of this section and the violation causes a bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one week nor more than one year, or fined not less than $1,000 nor more than $5,000, or both.

(e) (f) Any driver of a vehicle who willfully violates the provisions of subsection (a) of this section, and the violation causes death, is guilty of a felony and, upon conviction, shall be confined in a state correctional facility not less than one three years nor more than ten fifteen years and fined not less than $1,000 $5,000 nor more than $3,000.  $20,000: Provided, That any death charged under this subsection must occur within one year of the offense.

(f) (g) Every bus used for the transportation of school children shall bear upon the front and rear of the bus a plainly visible sign containing the words “school bus” in letters not less than eight inches in height. When a contract school bus is being operated upon a highway for purposes other than the actual transportation of children either to or from school, all markings on the contract school bus indicating “school bus” shall be covered or concealed. Any school bus sold or transferred to another owner by a county board of education, agency or individual shall have all flashing warning lights disconnected and all lettering removed or permanently obscured, except when sold or transferred for the transportation of school children.

(g) (h) Every county board of education is hereby authorized to mount a camera on any school bus for the purpose of enforcing this section or for any other lawful purpose.

(h) (i) To the extent that state, federal or other funds are available, the State Police shall conduct an information campaign to educate drivers concerning the provisions of this section and the importance of school bus safety.

(i) (j) The State Board of Education shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code governing the idling of school buses.

On motion of Delegate Shott, the amendment was amended on page three, section seven, line forty-four, by striking out the entirety of the remaining text of subsection (d) and inserting in lieu thereof the following:

“Where the actual identity of the operator of a motor vehicle operated in violation of subsection (a) of this section is unknown but the license plate number of the motor vehicle is known, it may be inferred that the operator was an owner or lessee of the motor vehicle, and the Commissioner of Motor Vehicles shall

(1) For a first offense under subsection (b) of this section, assess fees of not less than $200 nor more than $2,500;

(2) For a second offense under subsection (b) of this section, assess fees of not less than $2,500 nor more than $5,000; and

(3) For a third or subsequent offense under subsection (b) of this section, assess fees of not less than $5,000 nor more than $10,000.

Where there is more than one registered owner or lessee, the inference created by this subsection shall apply to the first listed owner or lessee as found on the motor vehicle registration.”

            The Judiciary Committee amendment, as amended, was then adopted.

The bill was then ordered to third reading.

            S. B. 27, Permitting county commissions hire outside attorneys for collection of taxes through courts; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            Com. Sub. for S. B. 102, Conforming to federal Law-Enforcement Officers Safety Act; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That §7-4-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §30-29-12, all to read as follows:

CHAPTER 7.  COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 4.  PROSECUTING ATTORNEY, REWARDS AND LEGAL ADVICE.

§7-4-1. Duties of prosecuting attorney; further duties upon request of Attorney General.

(a) It shall be the duty of The prosecuting attorney to shall attend to the criminal business of the state in the county in which he or she is elected and qualified, and when he the prosecuting attorney has information of the violation of any penal law committed within such the county, he the prosecuting attorney shall institute and prosecute all necessary and proper proceedings against the offender, and may in such case issue or cause to be issued a summons for any witness he may deem the prosecuting attorney considers material. Every public officer shall give him the prosecuting attorney information of the violation of any penal law committed within his or her county. It shall also be the duty of The prosecuting attorney to shall also attend to civil suits in such the county in which the state, or any department, commission or board thereof, is interested, and to advise, attend to, bring, prosecute or defend, as the case may be, all matters, actions, suits and proceedings in which such county or any county board of education is interested.

(b) (1) In furtherance of the prosecuting attorney’s duty to prosecute criminal offenses committed in the county to which they have been assigned, the prosecuting attorney and assistant prosecuting attorneys under his or her supervision shall have the authority to arrest any person committing a violation of the criminal laws of the State of West Virginia, the United States or a violation of Rule 42 of the West Virginia Rules of Criminal Procedure which occur in the county courthouse and other buildings where court proceedings are held in which the prosecutor or assistant prosecutor is appearing before the court in a criminal matter and in the presence of the prosecuting attorney or assistant prosecuting attorney.

(2) For purposes of subdivision (1) of this subsection, the arrest authority of a prosecuting attorney or assistant prosecuting attorney shall be consistent with that authority vested in a deputy sheriff, within the geographic limitations of subdivision (b)(1).

(3) Should a prosecuting attorney or assistant prosecuting attorney desire to carry a concealed firearm for self-defense purposes pursuant to the provisions of 18 U. S. C. §926B, the following criteria must be met:

(A) The prosecuting attorney’s office shall have a written policy authorizing the prosecuting attorney and his or her assistant prosecuting attorneys to carry a concealed firearm for self-defense purposes;

(B) There shall be in place in the office of the prosecuting attorney a requirement that the prosecuting attorney and assistant prosecuting attorneys must regularly qualify in the use of a firearm with standards therefore which are equal to or exceed those required of sheriff’s deputies in the county in which the prosecuting attorney was elected or appointed;

(C) The office of the prosecuting attorney shall issue a photographic identification and certification card which identify the prosecuting attorney or assistant prosecuting attorneys as law enforcement employees of the prosecuting attorney’s office pursuant to the provisions of section twelve, article twenty-nine, chapter thirty of this code.

(4) A prosecuting attorney’s office which institutes a policy pursuant to this subsection shall include in such policy a provision that precludes persons from participation in the concealed firearm program and persons subject to any disciplinary action which could result in loss of the authority conferred by this subsection to prosecute violations of criminal law and to arrest persons committing violations of State and Federal Criminal laws and West Virginia Rule of Criminal Procedure 42 and provisions which expressly preclude from participation persons prohibited by Federal or State law from possessing or receiving a firearm or those under the influence of alcohol or another intoxicating or hallucinatory drug or substance.

(5) Any prosecuting attorney or assistant prosecuting attorney who elects to participate in the program authorized by the provisions of this subsection shall be responsible, at his or her expense, for a suitable firearm and ammunition.

(6) It is the intent of the legislation in enacting the amendment to this section during the 2016 Regular Session of the Legislature to authorizing a prosecuting attorney and assistant prosecuting attorneys wishing to do so to meet the requirements of the Federal Law-Enforcement Officer’s Safety Act, 18 U. S. C. §926B.

(c) It shall be the duty of The prosecuting attorney to shall keep his or her office open in the charge of a responsible person during the hours when polls are open during general, primary and special county-wide election days, and the prosecuting attorney, or his the prosecuting attorney=s assistant, if any, shall be available for the purpose of advising election officials. It shall be the further duty of The prosecuting attorney, when requested by the Attorney General, to shall perform or to assist the Attorney General in performing, in the county in which he the prosecuting attorney is elected, any legal duties required to be performed by the Attorney General, and which are not inconsistent with the duties of the prosecuting attorney as the legal representative of such the county. It shall also be the duty of The prosecuting attorney, when requested by the Attorney General, to shall perform or to assist the Attorney General in performing, any legal duties required to be performed by the Attorney General, in any county other than that in which such the prosecuting attorney is elected, and for the performance of any such these duties in any county other than that in which such the prosecuting attorney is elected he the prosecuting attorney shall be paid his or her actual expenses.

Upon the request of the Attorney General the prosecuting attorney shall make a written report of the state and condition of the several causes in which the state is a party, pending in his or her county, and upon any matters referred to him the prosecuting attorney by the Attorney General as provided by law.

CHAPTER 30.  PROFESSIONS AND OCCUPATIONS.

ARTICLE 29.  LAW-ENFORCEMENT TRAINING AND CERTIFICATION.

§30-29-12. Law-enforcement officers to receive identification and certification to carry weapons off duty.

(a) Every person employed by a West Virginia state, county or municipal agency who is a qualified law-enforcement officer within the meaning of 18 U. S. C. §926B shall receive an appropriate photo identification and certification of training required to carry a concealed firearm under the federal Law-Enforcement Officers Safety Act. 18 U. S. C. §926B. No currently employed officer may be charged a fee for the photo identification and certification. This subsection does not prohibit a law-enforcement agency from controlling the use of any department-owned weapon.

(b) When a qualified law-enforcement officer, within the meaning of 18 U. S. C. §926B retires from, or otherwise honorably ceases employment with, a West Virginia state, county or municipal agency, the agency shall provide, at no charge, an appropriate photo identification to show the former employee’s status as an honorably separated or retired qualified retired law-enforcement officer within the meaning of 18 U. S. C. §926C. Every West Virginia state, county or municipal agency which conducts firearms qualification for current employees shall offer its honorably retired or separated former employees an opportunity to participate in such firearms qualification on an annual basis. The former employees shall provide at their own expense an appropriate firearm and ammunition and may be charged a fee not to exceed $25. Upon completion of the training and payment of any fee, the law-enforcement agency shall issue a new photo identification and certification which identifies the former employee as a ‘qualified retired law-enforcement officer’ who has satisfied the annual training requirements of 18 U. S. C. §926C.

(c) A law-enforcement agency may, in its sole discretion, allow a person who honorably retired or separated from another agency as a qualified law-enforcement officer within the meaning of 18 U. S. C. §926B, the opportunity to participate in firearms qualification the agency provides its own former employees under subsection (b) of this section. A participant shall provide at their own expense an appropriate firearm and ammunition and may be charged a fee not to exceed $50. Upon completion of the training and payment of any fee, the law-enforcement agency shall issue a certification which states that the retiree satisfied the training requirements of 18 U. S. C. 926C.”

            The bill was then ordered to third reading.

            Com. Sub. for S. B. 254, Not allowing county park commissions to prohibit firearms in facilities; on second reading, coming up in regular order, was read a second time.

            On motion of Delegate Shott, the bill was amended on page one, section five, line twelve, immediately following the word “county”, by striking out the word “court” and inserting in lieu thereof the word “commission”.

            And,

On page one, section five, line thirteen, immediately following the word “county”, by striking the word “court” and inserting in lieu thereof the word “commission”.

The bill was then ordered to third reading.

            Com. Sub. for S. B. 265, Allowing library volunteers necessary access to user records; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 271, Conforming definition of attest services to Uniform Accountancy Act; on second reading, coming up in regular order, was read a second time.

            On motion of Delegate Shott, the bill was amended on page ten, section seven, line fifty-two, immediately following the word “article” and the period, by inserting the following two new sections:

§30-9-33. Mandatory Training in federal antitrust law and state action immunity.

It shall be required of the West Virginia Board of Accountancy, and their representatives from the Attorney General’s office, to obtain initial training on the subject of federal antitrust law and state action immunity by July 1, 2016, and thereafter on an annual basis. The purpose of the training is to provide those members with the knowledge to be able to identify the risks of any action that may be taken by the board that could be construed as possible antitrust violations.

§30-9-34. Indemnification.

In the event that a lawsuit is filed alleging violation of federal antitrust laws, the board may indemnify its board members and current and former employees for expenses reasonably incurred in connection with judicial or administrative proceedings to which they are or may become parties by reason of the performance of their official duties.”

            The bill was then ordered to third reading.

            Com. Sub. for S. B. 274, Relating to increasing civil jurisdictional amount in magistrate courts; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, section one, line four, by striking out “Circuit courts may send any civil case where the amount in controversy is $10,000 or less to magistrate courts for trial.” 

            The bill was then ordered to third reading.

            Com. Sub. for S. B. 283, Creating crime when fire is caused by operation of a clandestine drug laboratory; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

            “That §60A-4-411 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

§60A-4-411. Operating or attempting to operate clandestine drug laboratories; offenses; penalties.

(a) Any person who operates or attempts to operate a clandestine drug laboratory is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than two years nor more than ten years or fined not less than $5,000 nor more than $25,000, or both.

(b) Any person who operates or attempts to operate a clandestine drug laboratory and who as a result of, or in the course of doing so, causes to be burned any dwelling, outbuilding, building or structure of any class or character is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two nor more than ten years or fined not less than $1,000 nor more than $5,000, or both imprisoned and fined.

(b) (c) For purposes of this section, a ‘clandestine drug laboratory’ means any property, real or personal, on or in which a person assembles any chemicals or equipment or combination thereof for the purpose of manufacturing methamphetamine, methylenedioxymethamphetamine or lysergic acid diethylamide in violation of the provisions of section four hundred one of this article.

(d) The offenses in subsections (a) and (b) of this section are separate and distinct offenses, and not shall not be construed to be a lesser included offense of each other.

(e) For purposes of W.Va. Code §60A-2-1, both subsection (a) and (b) of this section shall be deemed qualifying felony offenses of manufacturing and delivery of a controlled substance.

(c) (f) Any person convicted of a violation of subsection (a) or (b) of this section shall be responsible for all reasonable costs, if any, associated with remediation of the site of the clandestine drug laboratory.”

The bill was then ordered to third reading.

            S. B. 352, Dedicating corporation net income tax proceeds to railways; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 379, Relating to candidate filing fees; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 476, Relating to driving restrictions in school zones; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, immediately following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:

ARTICLE 6. SPEED RESTRICTIONS

§17C-6-1. Speed limitations generally; penalty.

(a) No person may drive a vehicle on a highway at a speed greater than is reasonable and prudent under the existing conditions and the actual and potential hazards. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highways in compliance with legal requirements and the duty of all persons to use due care.

(b) Where no special hazard exists that requires lower speed for compliance with subsection (a) of this section, the speed of any vehicle not in excess of the limits specified in this section or established as authorized in this section is lawful, but any speed in excess of the limits specified in this subsection or established as authorized in this section is unlawful. The following speed limits apply:

(1) Fifteen miles per hour in a school zone during school recess or while children are going to or leaving school during opening or closing hours. A school zone is all school property, including school grounds and any street or highway abutting the school grounds and extending one hundred twenty-five feet along the street or highway from the school grounds. The West Virginia Division of Highways shall erect signage indicating the place of entry and exit of each school zone.  Upon a formal vote and a written request by a county board of education to expand a school zone to a road that is adjacent to school property, the West Virginia Division of Highways shall, upon a determination by the Division that such action is needed and necessary for the safety of the school children, expand the school zone by erecting new signage indicating the expanded school zone’s location and speed limit within ninety days of receiving the request. The speed restriction does not apply to vehicles traveling on a controlled-access highway which is separated from the school or school grounds by a fence or barrier approved by the Division of Highways;

(2) Twenty-five miles per hour in any business or residence district; and

(3) Fifty-five miles per hour on open country highways, except as otherwise provided by this chapter.

The speeds set forth in this section may be altered as authorized in sections two and three of this article.

(c) The driver of every vehicle shall, consistent with the requirements of subsection (a) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.

(d) The speed limit on controlled access highways and interstate highways, where no special hazard exists that requires a lower speed, shall be not less than fifty-five miles per hour and the speed limits specified in subsection (b) of this section do not apply.

(e) Unless otherwise provided in this section, any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100; upon a second conviction within one year thereafter, shall be fined not more than $200; and, upon a third or subsequent conviction within two years thereafter, shall be fined not more than $500: Provided, That if the third or subsequent conviction is based upon a violation of the provisions of this section where the offender exceeded the speed limit by fifteen miles per hour or more, then upon conviction, shall be fined not more than $500 or confined in the county or regional jail for not more than six months, or both fined and confined.

(f) Any person who violates the provisions of subdivision (1), subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500: Provided, That if the conviction is based upon a violation of the provisions of subdivision (1), subsection (b) of this section where the offender exceeded the speed limit by fifteen miles per hour or more in the presence of one or more children, then upon conviction, shall be fined not less than $100 nor more than $500 or confined in the regional or county jail for not more than six months, or both fined and confined: Provided, that if the signage required by subdivision (1) is not present in the school zone at the time of the violation, then any person who violates said provision is guilty of a misdemeanor, and upon conviction thereof, shall be fined not more than $25.

(g) If an owner or driver is arrested under the provisions of this section for the offense of driving above the posted speed limit on a controlled access highway or interstate highway and if the evidence shows that the motor vehicle was being operated at ten miles per hour or less above the speed limit, then, upon conviction thereof, that person shall be fined not more than $5, plus court costs.

(h) Any person operating a commercial motor vehicle engaged in the transportation of coal on the coal resource transportation road system who violates subsection (a), (b) or (c) of this section shall, upon conviction, be subject to fines in triple the amount otherwise provided in subsection (e) of this section.

(i) If an owner or driver is convicted under the provisions of this section for the offense of driving above the speed limit on a controlled access highway or interstate highway of this state and if the evidence shows that the motor vehicle was being operated at ten miles per hour or less above the speed limit, then notwithstanding the provisions of section four, article three, chapter seventeen-b of this code, a certified abstract of the judgment on the conviction shall not be transmitted to the Division of Motor Vehicles: Provided, That the provisions of this subsection do not apply to conviction of owners or drivers who have been issued a commercial driver’s license as defined in chapter seventeen-e of this code, if the offense was committed while operating a commercial vehicle.

(j) If an owner or driver is convicted in another state for the offense of driving above the maximum speed limit on a controlled access highway or interstate highway and if the maximum speed limit in the other state is less than the maximum speed limit for a comparable controlled access highway or interstate highway in this state, and if the evidence shows that the motor vehicle was being operated at ten miles per hour or less above what would be the maximum speed limit for a comparable controlled access highway or interstate highway in this state, then notwithstanding the provisions of section four, article three, chapter seventeen-b of this code, a certified abstract of the judgment on the conviction shall not be transmitted to the Division of Motor Vehicles or, if transmitted, shall not be recorded by the division, unless within a reasonable time after conviction, the person convicted has failed to pay all fines and costs imposed by the other state: Provided, That the provisions of this subsection do not apply to conviction of owners or drivers who have been issued a commercial driver’s license as defined in chapter seventeen-e of this code, if the offense was committed while operating a commercial vehicle.”

            The bill was then ordered to third reading.

            S. B. 483, Marshall County LSIC waiver; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the bill on page two, section three-a, line twenty-six, after the year 2016 and the period, by adding thereto another subdivision as follows:

“(3) Section one-a, article eight, chapter eighteen of this code is waived for the schools of Wyoming County for the purpose of increasing the compulsory school attendance age in Wyoming County from seventeen to eighteen years of age as a part of its countywide dropout prevention initiative as requested by letter dated February 25, 2016 and recommended by the Legislative Oversight Commission on Education Accountability on February 25, 2016.”

The bill was then ordered to third reading.

            Com. Sub. for S. B. 582, Providing refundable tax credit for motor fuel sold for use or consumed in railroad diesel locomotives; on second reading, coming up in regular order, was read a second time and ordered to third reading.

First Reading

            The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

            S. B. 29, Tolling statute of limitations in certain cases,

            S. B. 303, Providing for 5-day resident fishing license,

            Com. Sub. for S. B. 376, Expanding authority of Secretary of State and State Police,

            S. B. 437, Updating and clarifying code relating to rules governing mixed martial arts,

            Com. Sub. for S. B. 500, Authorizing Superintendent of State Police hold training classes to use West Virginia Automated Police Network,

            And,

            S. B. 507, Exempting motor vehicles engaged in nonemergency transport of Medicaid recipients from PSC permit requirements.

Leaves of Absence

            At the request of Delegate Cowles, and by unanimous consent, leave of absence for the day was granted Delegate B. White.

Remarks of Members

            Delegate J. Nelson asked and obtained unanimous consent that the remarks of Delegate Perdue regarding Trevor Noah be printed in the Appendix to the Journal.

Miscellaneous Business

            Delegate Hamilton asked and obtained unanimous consent to be removed as a cosponsor of H. B. 2704.

At 12:17 p.m., on motion of Delegate Cowles, the House of Delegates recessed until 5:00 p.m.

* * * * * * *

Evening Session

* * * * * * *

Messages from the Senate

A message from the Senate, by

The Clerk of the Senate, announced the adoption of the report of the Committee of Conference on and the passage, as amended by said report, to take effect from passage, of

Com. Sub. for H. B. 2800, Adding law-enforcement officers’ contact information and names of family members to the list of exemptions from public records requests.

A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had concurred in the amendments of the House of Delegates, with a title amendment, and again passed a bill of the House of Delegates, heretofore disapproved by the Governor, all as a result of the objections of the Governor, as follows:

Enr. Com. Sub. for H. B. 4007, Relating generally to appointment of attorneys to assist the Attorney General.

The House of Delegates then proceeded to reconsider the bill (Com. Sub. for H. B. 4007), in an effort to meet the objections of the Governor.

On motion of Delegate Cowles the House concurred in the Senate title amendment, as follows:

Enr. Com. Sub. for H. B. 4007 - “An Act to amend and reenact §5-3-3 and §5-3-4 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §5-3-3a, all relating generally to appointment of attorneys to assist the Attorney General; authorizing the Attorney General to appoint special assistant attorneys general; establishing when special assistant attorneys general can be appointed; establishing competitive bidding process for the use of private attorneys on a contingency fee basis by the Attorney General; requiring written determinations for the Attorney General’s selection of private attorneys to represent the state on a contingency fee basis; setting fees for contingency fee legal arrangements or contracts between private attorneys and the Attorney General; requiring appointed private attorneys to accept an award of attorney fees in accordance with, and no greater than, the established fee limitations; establishing supervision requirements for private lawyers representing the state on a contingency fee basis; requiring the posting of certain documents relating to the Attorney General’s retention of private attorneys to represent the state on a contingency fee basis; providing for the designation as a special assistant attorney general upon appointment; requiring Attorney General reports on certain legal causes and matters to the Governor, President of the Senate and Speaker of the House; outlining contents of those reports; updating and removing outdated provisions; defining terms; clarifying that the appointment of a special assistant attorney general shall not be construed to alter, inhibit or expand the attorney-client relationship between the Attorney General and the state in the control or conduct of a cause of action; and providing that these new provisions are inapplicable to and shall not impair any contingency fee legal arrangement or contract awarded prior to the effective date.”

 

            The Speaker propounded, “Shall the bill pass, in an effort to meet the objections of the Governor?”

            On this question, the yeas and nays were taken (Roll No. 354), and there were--yeas 76, nays 8, absent and not voting 16, with the nays and absent and not voting being as follows:

Yeas: Amber, Atkinson, Azinger, Bates, Blackwell, Blair, Boggs, Butler, Byrd, Cadle, Campbell, Canterbury, Cooper, Cowles, Duke, Ellington, Espinosa, A. Evans, D. Evans, Faircloth, Fast, Folk, Foster, Frich, Gearheart, Hamilton, Hamrick, Hanshaw, Hartman, Hill, Householder, Howell, Ihle, Ireland, Kelly, Kessinger, Kurcaba, Lane, Longstreth, Lynch, Manchin, McCuskey, McGeehan, Miller, Moffatt, Moye, E. Nelson, J. Nelson, O’Neal, Perry, Pethtel, Phillips, Pushkin,  Rodighiero, Rohrbach, Romine, Rowan, Rowe, Shaffer, Shott, Skinner, P. Smith, R. Smith, Sobonya, Stansbury, Statler, Summers, Upson, Wagner, Walters, Waxman, Weld, Westfall, P. White, Zatezalo, and Mr. Speaker, Mr. Armstead.

Nays: Eldridge, Ferro, Fleischauer, Fluharty, Guthrie, Hornbuckle, Miley and Sponaugle.

Absent and Not Voting: Anderson, Arvon, Border, Caputo, Deem, Flanigan, Hicks, Marcum, Moore, Morgan, Overington, Perdue, Reynolds, Storch, Trecost and B. White.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4007) 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.

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of

            Com. Sub. for S. B. 421, Terminating behavioral health severance and business privilege tax.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

Com. Sub. for S. C. R. 7 - “Requesting the Division of Highways name bridge number 11186, at mile marker 153 crossing Interstate 79 in Monongalia County, the “Rosie the Riveters Memorial Bridge”.

Whereas, Rosie the Riveter is a cultural icon of the United States, representing the American women who worked in factories and shipyards during World War II, many of whom produced munitions and war supplies. American women sometimes took entirely new jobs replacing the male workers who were in the military. Rosie the Riveter is commonly used as a symbol of feminism and women's economic power. Similar images of women war workers appeared in other countries such as Great Britain and Australia. Images of women workers were widespread in the media as government posters and commercial advertising was heavily used by the government to encourage women to volunteer for wartime service in factories; and

Whereas, Nearly 19 million women held jobs during World War II. Many of these women had already been working. Only 3 million new female workers entered the workforce during the time of the war. Although most women took on male dominated trades during World War II, they were expected to return to their everyday housework once men returned from the war; and

Whereas, Rosie the Riveter became most closely associated with another real woman, Rose Will Monroe, who was born in Pulaski County, Kentucky. In 1920 Ms. Monroe moved to Michigan and during World War II she worked as a riveter at the Willow Run Aircraft Factory in Ypsilanti, Michigan, building B-24 bombers for the U.S. Army Air Forces. She was asked to star in a promotional film about the war effort at home. The song “Rosie the Riveter” was popular at the time and Ms. Monroe happened to best fit the description of the worker depicted in the song.  “Rosie” went on to become perhaps the most widely recognized icon of that era. The films and posters she appeared in were used to encourage women to go to work in support of the war effort. At the age of 50, Ms. Monroe realized her dream of flying when she obtained a pilot's license. In 1978, she crashed in her small propeller plane when the engine failed during takeoff. The accident resulted in the loss of one kidney and the sight in her left eye, and ended her flying career. She died from kidney failure on May 31, 1997, age of 77, in Clarksville, Indiana where she was a resident; and

Whereas, According to the Encyclopedia of American Economic History, “Rosie the Riveter” inspired a social movement that increased the number of working American women from 12 million to 20 million by 1944, a 57% increase from 1940. By 1944 only 1.7 million unmarried men between the ages of 20 and 34 worked in the defense industry, while 4.1 million unmarried women between those ages did so. Although the image of “Rosie the Riveter” reflected the industrial work of welders and riveters during World War II, the majority of working women filled nonfactory positions in every sector of the economy. What unified the experiences of these women was that they proved to themselves and the country that they could do a “man's job” and could do it well. In 1942, just between the months of January and July, the estimates of the proportion of jobs that would be “acceptable” for women was raised by employers from 29 to 85%; therefore, be it

Resolved by the Legislature of West Virginia:

That the Division of Highways is hereby requested to name bridge design number 11186, at mile marker 153 crossing Interstate 79 in Monongalia County, the “Rosie the Riveters Memorial Bridge”; and, be it

Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge 11186 as the “Rosie the Riveters Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways and the Rosie the Riveters state organization.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on then Rules:

Com. Sub. for S. C. R. 37 - “Requesting Division of Highways to name bridge number 22-119-0.04, NB & SB (22A102 & 22A103), latitude 38.18215, longitude -81.84941, on U. S. Route 119, otherwise known as the North Pinnacle Rock Creek Bridge, in Lincoln County, the ‘U. S. Army PFC Willie Paul Wilson Bridge’.”

Whereas, PFC Willie Paul Wilson, known to his family and friends as “Jenkie”, was born on November 11, 1925, in Julian, West Virginia, to John and Elsie Wilson; and

Whereas, PFC Willie Paul Wilson enlisted in the U. S. Army on February 29, 1944, and was assigned to Company K, 1st Platoon, 262nd Regiment; and

Whereas, PFC Willie Paul Wilson was killed on Christmas Eve, 1944, aboard the S. Leopoldville, a Belgian troopship being used in the English Channel to transport troops and supplies for the Allied war effort. On that evening, a German submarine torpedoed the S. Leopoldville when it was only five miles from the shore, killing at least eight hundred and two people in the most deadly tragedy to ever befall an American Infantry Division as the result of an enemy submarine attack; and

Whereas, PFC Willie Paul Wilson was awarded the Purple Heart on June 30, 1945, for the wounds that resulted in his death; and

Whereas, It is fitting that PFC Willie Paul Wilson be memorialized and honored for his great sacrifice in the area where he lived; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Division of Highways to name bridge numbers 22-119-0.04 NB & SB (22A102 & 22A103), latitude 38.18215, longitude -81.84941, on U. S. Route 119, otherwise known as the North Pinnacle Rock Creek Bridge, in Lincoln County, be named the “U. S. Army PFC Willie Paul Wilson Bridge”; and, be it

Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the “U. S. Army PFC Willie Paul Wilson Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways and to the family of PFC Willie Paul Wilson.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on then Rules:

S. C. R. 38 - “Requesting Division of Highways name bridge number 06-64-19.71, EB & WB (06A145, 06A192) (38.41793, -82.26105), locally known as the Ona Mall Bridge, EB and WB, carrying Interstate 64 over Cabell County Route 60/89 in Cabell County, the “ U. S. Army PFC Denver Holly Memorial Bridge’.”

Whereas, Denver Holly was born in Livingston, West Virginia, on August 11, 1920.  He lived in Holly Grove, Hansford, and in a few other towns in Kanawha County until he was 22 years old; and

Whereas, Denver Holly joined the U. S. Army on July 17, 1942. Denver was a Private First Class and served his country in Europe during World War II. He was an infantryman and, during battles, was an ammunition runner. In 1944, he was wounded twice while serving in France; and

Whereas, PFC Denver Holley’s service during World War II earned him the Purple Heart Medal with Cluster, American Theater Service Ribbon, European African Middle Eastern Service Ribbon and World War II Victory Ribbon; and

Whereas, Following his honorable discharge from the Army following the war, PFC Denver Holley lived in Huntington and Barboursville for 41 years; and

Whereas, PFC Denver Holly passed away on December 17, 2015; and

Whereas, It is fitting that an enduring memorial be established to commemorate his service to his country; therefore, be it

Resolved by the Legislature of West Virginia:

That the Division of Highways is hereby requested to name bridge number 06-64-19.71, EB & WB (06A145, 06A192) (38.41793, -82.26105), locally known as the Ona Mall Bridge, EB and WB, carrying Interstate 64 over Cabell County Route 60/89 in Cabell County, the “ U. S. Army PFC Denver Holly Memorial Bridge”; and, be it

Further Resolved, That the Commissioner of the Division of Highways is hereby requested to have made and be placed signs identifying the “U. S. Army PFC Denver Holly Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways and to the family of the late Denver Holley.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on then Rules:

S. C. R. 39 - “Requesting Division of Highways to name bridge numbered 13-60-41.35 (13A118), that intersects over Dry Creek, also known as the Dry Creek Bridge, located at latitude 37.79396, -80.30068 on Route 60, Main Street, in White Sulphur Springs, Greenbrier County, the ‘Clifford Family Memorial Bridge’.”

Whereas, The Clifford family of Greenbrier County first settled in White Sulphur Springs in 1879 when John Joseph Clifford, then a railroad conductor, and his new bride, Mary Ann McDonough Clifford, arrived there to establish their residential home; and

Whereas, The Clifford family became prominent in White Sulphur Springs, where they built their home and raised their many children; and

Whereas, The Cliffords of Greenbrier County have a rich history of military service to this country, as two of John Joseph Clifford’s sons were recipients of the distinguished Silver Star; and

Whereas, Leo Michael Clifford, one of John Joseph Clifford’s sons, served in WWII in Meuse-Argonne, France, in the Argonne Forrest in the 116th Infantry, 29th Division and was wounded and received the Purple Heart for his distinguished and heroic service; and

Whereas, Both of Leo Michael Clifford’s sons, Leo Michael Clifford, Jr., and Thomas Rufus Clifford, served in the Korean War; Leo in the U. S. Army and Thomas in the U. S. Navy; and

Whereas, Many other members of the Clifford family played important and pivotal roles in shaping and contributing to the White Sulphur Springs community. In fact, three of John Joseph Clifford’s great grandchildren still reside in White Sulphur Springs with their respective families; and

Whereas, It is fitting to memorialize the importance of the Clifford family’s longstanding heritage and many civic contributions  to the community of White Sulphur Springs in Greenbrier County and their distinguished service in the U. S. military by naming the aforementioned bridge in their cumulative honor; therefore, be it,

Resolved by the Legislature of West Virginia:

That the Division of Highways is hereby requested to name bridge numbered 13-60-41.35 (13A118), that intersects over Dry Creek, also known as the Dry Creek Bridge,  located at latitude 37.79396, -80.30068 on Route 60, Main Street, in White Sulphur Springs, Greenbrier County, the “Clifford Family Memorial Bridge”; and, be it

Further Resolved, That the Commissioner of the Division of Highways is hereby requested to have made and be placed signs identifying the “Clifford Family Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways and to Gordon W. Lewis, Jr., of White Sulphur Springs, West Virginia.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on then Rules:

S. C. R. 41 - “Requesting Division of Highways to name bridge number 03-9/2-0.01 (03A053) (37.95860, -81.85398), locally known as Missouri Fork Bridge, carrying County Route 9/2 over Hewett Creek in Boone County, the ‘U. S. Army SGT Philip Ray Casto Memorial Bridge’.”

Whereas, SGT Philip Ray Casto was born January 29, 1942, in Hewett, the first of three children to Girt and Hazel (Ball) Casto and attended Missouri Fork and Spencer Grade schools and graduated from Scott High School in 1959; and

Whereas, SGT Philip Ray Casto married Doris Jean Caruthers in 1964 and shortly thereafter was drafted into the U. S. Army. He went on to serve his country in Germany, specializing in radio communications and as a rifle sharpshooter. Being honorably discharged in June, 1966, he and his wife returned home to Boone County to await the arrival of their daughter, Debra Chambers; and

Whereas, After his discharge, SGT Philip Ray Casto worked at Barkers’ Hardware and later with Logan Auto Parts in Madison, which he went on to manage for nearly 20 years. SGT Casto never failed to go out on any given night, no matter the time, so that a customer, whether it was a coal mine in need or a friend broken down beside the road, could get the parts needed to be up and running, most times fixing the vehicle himself; and

Whereas, SGT Philip Ray Casto later worked for Eastern States Mine Supply, where he once again served the county day and night supplying any need, retiring in 2004; and

Whereas, SGT Philip Ray Casto loved cars or pretty much anything with a motor.  He always made them just a little better. Everyone knew where to find him when a problem arose with their vehicle. Most weekends you could find SGT Philip Ray Casto building or repairing drag racing cars or riding in the hills of Boone County in the first dune buggy built, of course, by him; and

Whereas, SGT Philip Ray Casto was also an avid gardener. It was never a strange sight for anyone who knew SGT Casto to see him on his tractor preparing for another huge garden. He gave away at least most everything he grew, leaving fresh vegetables on neighbors’ porches with no expectation of anything in return; and

Whereas, SGT Casto had a second child, a boy named Steve, born in 1973. Regretfully, he and his wife divorced in 1978, but later remarried and had another son; and

Whereas, Except for the time he served in the Army, SGT Casto lived all of his life in Boone County, and all but eleven of those years were lived on Missouri Fork in Hewitt; and

Whereas, SGT Casto passed away at the Veterans Hospital in Huntington on August 11, 2015. He was 73 years old; and

Whereas, It is fitting that SGT Philip Ray Casto be memorialized and honored for his service in the area where he lived; therefore, be it

Resolved by the Legislature of West Virginia::

That the Legislature hereby requests the Division of Highways to name bridge number 03-9/2-0.01 (03A053) (37.95860,  -81.85398), locally known as Missouri Fork Bridge, carrying County Route 9/2 over Hewett Creek in Boone County, the “U. S. Army SGT Philip Ray Casto Memorial Bridge; and, be it

Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the “U. S. Army SGT Philip Ray Casto Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and to the family of SGT Philip Ray Casto.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on then Rules:

S. C. R. 42 - “Requesting Division of Highways to name the newly constructed bridge, number 23-10-19.39 (23A365), (37.84226, -81.97681), locally known as the Guyandotte River Bridge, carrying WV Route 10 over the Guyandotte River in Logan County, the ‘U. S. Navy LCDR Helen Elizabeth Peck Memorial Bridge’.”

Whereas, Helen Elizabeth Peck was born on August 28, 1910, in Logan, West Virginia, as one of six children of John Edwin and Minerva Peck, whose American lineage extends back to the time of the Revolutionary War; and

Whereas, Helen Elizabeth Peck attended and graduated from Marshall University with a major concentration in elementary education and mathematics and, subsequently, earned her West Virginia teaching certificate; and

Whereas, Helen Elizabeth Peck became a teacher in  Logan County schools and then, during World War II, was commissioned as a Lieutenant in the Women’s Reserve of the U. S. Navy; and

Whereas, Lieutenant  Helen Elizabeth Peck served for nearly four years at the hydrographic office with Central Naval Operations in Washington, D. C., where she worked with LORAN navigation, which was a top secret project at that time; and

Whereas, After completing her active duty, Helen Elizabeth Peck continued service in the Naval Reserve where she attained the rank of Lieutenant Commander; and

Whereas, She returned to teaching in Logan County schools where she worked in various positions at the elementary and junior high school levels, including a period as principal of an elementary school, until her retirement in her early 1970s; and

Whereas, Lieutenant Commander Helen Elizabeth Peck was, apart from her period of active duty in military service, a lifelong resident of  Logan County; and

Whereas, It is only fitting that we name this bridge in Lieutenant Commander Helen Elizabeth Peck‛s honor to acknowledge her many years of service to her nation, her students and her community; therefore, be it

Resolved by the Legislature of West Virginia:

That the Division of Highways is hereby requested to name the newly constructed bridge, number 23-10-19.39 (23A365) (37.84226, -81.97681), locally known as the Guyandotte River Bridge, carrying WV Route 10 over the Guyandotte River in Logan County, the “U. S. Navy LCDR Helen Elizabeth Peck Memorial Bridge”; and, be it

Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the “U. S. Navy LCDR Helen Elizabeth Peck Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate forward a certified copy of this resolution to the Secretary of the Department of Transportation and to the family of Lieutenant  Commander Helen Elizabeth Peck.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on then Rules:

S. C. R. 44 - “Requesting Division of Highways name bridge number 10-15-10.14 (10A039) (37.98063, -81.29932), locally known as the turnpike Bridge, carrying County Route 15 over I-77 NBL and SBL in Fayette County, West Virginia, the ‘U. S. Marine Corps SGT Mike Plasha Memorial Bridge’.”

Whereas, SGT Mike Plasha was born March 14, 1925, in the coal mining town of Kingston, West Virginia. He was the son of East European immigrants George and Anna Plasha and had five brothers and one sister. His Yugoslavian father was a miner for the Kingston Pocahontas Coal Company; and

Whereas, As a student at Kingston High School, SGT Mike Plasha was considered a star athlete and lettered in football and basketball, but he wanted to enter the military after the war began, hoping to return after the war and eventually become an athletic coach; and

Whereas, SGT Mike Plasha entered the Marine Corps on August 18, 1942. He was first stationed at Camp Lejeune and later Camp Pendleton and then served in the Pacific theater in the 2nd Battalion, 25th Marines, 4th Marine Division; and

Whereas, During the invasion of Ennubirr Island, one of the Marshall Islands, on January 31, 1944, then CPL Plasha pushed ahead with his rifle, killing several Japanese soldiers and urged the Marine forces forward. For his actions, SGT Plasha was awarded the Silver Star; and

Whereas, SGT Mike Plasha’s Silver Star Award reads, “Awarded for actions during the World War II: The President of the United States of America takes pride in presenting the Silver Star (Posthumously) to CPL Mike Plasha (MCSN:  444727),  United States Marine Corps, for conspicuous gallantry and intrepidity while serving with Company F, Second Battalion, Twenty-fifth Marines, FOURTH Marine Division in action against enemy Japanese forces during the invasion of Ennubirr Island, Kwajalein Atoll on 31 January 1944.  Realizing upon landing that his machine guns were masked by friendly troops and so of no value in the action, CPL Plasha immediately left his guns with a squad leader and pushed forward alone.  With complete disregard for his own safety he took the enemy under fire with his rifle accounting for approximately five Japanese.  Noting that the assault rifle troops were moving too slowly he personally led these Marines urging them forward and causing the enemy to fall back.  His daring aggressiveness, heroic devotion to duty and intelligent analysis of a critical situation reflected the highest credit upon CPL Plasha and the United States Naval Service”; and

Whereas, Five months later, on June 16, 1944, SGT Mike Plasha, now a Sergeant, again displayed “conspicuous gallantry” during action on Saipan in the Marianas. For this action, he was awarded a Gold Star; and

Whereas, SGT Mike Plasha’s Gold Star Award reads: “The President of the United States takes pride in presenting the GOLD STAR in lieu of a second SILVER STAR MEDAL posthumously to  SGT MIKE PLASHA, UNITED STATES MARINE CORPS RESERVE for services as set forth in the following: CITATION: ‘For conspicuous gallantry and intrepidity as Leader of a Machine-Gun Section serving with the Second Battalion, Twenty-Fifth Marines, Fourth Marine Division, during action against enemy Japanese forces at Saipan, Marianas Islands, on 16 June 1944. In courageous defiance of heavy, enemy mortar and artillery fire, SGT Plasha valiantly led a section of the attack to exposed positions in order to bring fire to bear on strongly fortified enemy gun positions and pillboxes which had resisted the tank-led efforts of an entire battalion for over a day.  Persistently firing and throwing hand grenades, he continued to press the attack until extremely heavy casualties forced the withdrawal of our men, later returning to the ridge to assist in the evacuation of the wounded.  His daring spirit of aggressiveness and cool determination under intense hostile fire reflect the highest credit upon SGT Plasha and the United States Naval Service.’ For the President, Secretary of the Navy’; and

Whereas, SGT Mike Plasha was killed on July 10, 1944, while attempting to rescue a fellow Marine in the Battle of Saipan. He was posthumously awarded the Bronze Star. His body is buried at Highland Park Cemetery in Fayette County; and

Whereas, SGT Mike Plasha’s Bronze Star Medal reads: “The President of the United States takes pride in presenting the BRONZE STAR MEDAL posthumously to SGT MIKE PLASHA, UNITED STATES MARINE CORPS RESERVE, for service as set forth in the following

CITATION: ‘For heroic service as Leader of a Machine-Gun Section serving with the Second Battalion, Twenty-Fifth Marines, Fourth Marine Division, during action against enemy Japanese forces at Saipan, Marianas Islands, on 10 July 1944.  Risking his life to rescue a Marine who had been shot at close range by a Japanese sniper, SGT Plasha unhesitatingly ran forward to the area where the man lay exposed to enemy fire but was himself mortally wounded before he could fulfill his voluntary and hazardous mission.  His outstanding courage in the face of danger and his valiant spirit of self-sacrifice were in keeping with the highest traditions of the United States Naval Service.  He gallantly gave his life for another.’ For the President, Secretary of the Navy”; and

Whereas, It was said that SGT Mike Plasha became something of a hero to the boys in the Twenty-fifth Regiment. Recollection of the Early Years, by Frank S. Craig, Jr., contains a tribute to SGT Plasha, and he is memorialized in a poem written by Carl Dearborn.  Both men served with him.  “So many of us, of ‘F’ Company, owe so much to Sgt. Mike Plasha.  A very brave Marine who would have gone far in life,” Dearborn later wrote SGT Mike Plasha’s brother, Tom; and

Whereas, It is fitting that an enduring structure commemorate United States Marine Corps SGT Mike Plasha’s service to his country during World War II in having made the ultimate sacrifice for his country, his state and his fellow Marines; therefore, be it

Resolved by the Legislature of West Virginia:

That the Division of Highways name bridge number 10-15-10.14 (10A039) (37.98063, -81.29932), locally known as Turnpike Bridge, carrying County Route 15 over I-77 NBL and SBL in Fayette County, West Virginia, the “U. S. Marine Corps SGT Mike Plasha Memorial Bridge”; and, be it

Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the “U. S. Marine Corps SGT Mike Plasha Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate forward a certified copy of this resolution to the Commissioner of the Division of Highways and to the family of SGT Mike Plasha.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 45 - “Requesting Division of Highways name bridge in Putnam County, bridge number 40-35-9.68 (40A157) northbound and bridge number 40-35-9.68 (40A158) southbound, on Route 35 crossing over 5 and 20 Creek Road, 1.17 miles north of CR 19, the ‘U. S. Army SGT Deforest Lee Talbert Memorial Bridge’.”

Whereas, SGT Deforest Lee Talbert was born January 24, 1982, in Alexandria, Virginia, the son of Gloria Nesbitt and Benjamin Dickens.  He graduated from T. C. Williams High School.  He moved to West Virginia to attend West Virginia State University where he majored in communications.  He enlisted in the West Virginia Army National Guard in Dunbar, West Virginia, and was assigned to Bravo Company, 1/150 AR, in 2001; and

Whereas, SGT Deforest Lee Talbert was mobilized as part of Operation Iraqi Freedom on October 1, 2003, and was reassigned to Charlie Company, 1/150 AR.  His company was deployed to the Iraqi Theater of Operations along with the 1-150th Armor Battalion and the 30th Brigade Team on February 29, 2004.  He served as an assistant gunner with the First Platoon, Charlie 12 gun truck.  While patrolling on the evening of July 27, 2004, SGT Talbert’s convoy was the target of an enemy attack using an improvised explosive device.  Three of his fellow soldiers were injured, but SGT Talbert absorbed the brunt of the explosion and was instantly killed.  SGT Deforest Lee Talbert received the Army Service Ribbon, the Sharpshooter Marksmanship Badge (Pistol), the Expert Marksmanship Badge (Grenade), SSI/FWS for the 30th Brigade Combat Team and the 1st Infantry Division and, posthumously, a Purple Heart and a Bronze Star with V Device; and

Whereas, SGT Deforest Lee Talbert made the ultimate sacrifice for his country and in doing so represented West Virginia and his country with the highest levels of honor and courage and his sacrifice should not go unnoticed.  Naming this bridge in Putnam County for him is an appropriate recognition of his ultimate sacrifice for state and country; therefore, be it

Resolved by the Legislature of West Virginia:

That the Division of Highways is hereby requested to name the bridge in Putnam County, bridge number 40-35-9.68 (40A157) northbound and bridge number 40-35-9.68 (40A158) southbound, on Route 35 crossing over 5 and 20 Creek Road, 1.17 miles north of CR 19, the “U. S. Army SGT Deforest Lee Talbert Memorial Bridge”; and, be it

Further Resolved That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the “U. S. Army SGT Deforest Lee Talbert Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this Resolution to the Commissioner of the Division of Highways and the surviving family members of SGT Deforest Lee Talbert:  Mother, Gloria Nesbitt; father, Benjamin Dickens; sisters, Tawanna Talbert-Loving, Latasha Marble and Chiquita Talbert; brother, James Talbert; and his devoted friend, Frances Hamlet.

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 47 - “Requesting Division of Highways name bridge number 20-60-30.04 EB-WB, (20A350-20A349) (38.21983, -81.52307), locally known as U. S. 60 Witcher Creek Bridge EB & WB, carrying U. S. 60 over Witcher Creek in Kanawha County, the ‘West Virginia State Police SGT Harold E. Dailey Bridge’.”

Whereas, Harold E. Dailey was born on August 3, 1938, in Logan, West Virginia.  He graduated from Logan High School in 1957, where he was an all-state baseball pitcher for the Wildcats.  After a stint in the U. S. Army, he joined the West Virginia State Police on August 2, 1968, and served until February 25, 1994, when he retired as the Quincy Detachment Commander.  He served eastern Kanawha County from detachments in Chelyan, Glasgow and Quincy for much of his career, with stints out of the South Charleston and Cross Lanes detachments as well.  Harold E. Dailey lived in the Witcher Creek/Belle area for much of his career, while also living in Malden and Burning Springs during his service time with the State Police; and

Whereas, Harold E. Dailey served the State of West Virginia as a State Trooper for 26 years, his country in the U. S. Army for two years and continues to serve the state as a part-time security officer for the West Virginia Supreme Court; and

 Whereas, Naming bridge number 20-60-30.04 EB-WB, (20A350-20A349) (38.21983, -81.52307), locally known as U. S. 60 Witcher Creek Bridge EB & WB, carrying U. S. 60 over Witcher Creek in Kanawha County, the “West Virginia State Police SGT Harold E. Dailey Bridgeis an appropriate recognition of his contribution to his country, state, community and Kanawha County; therefore, be it

Resolved by the Legislature of West Virginia:

That the Division of Highways is hereby requested to name bridge number 20-60-30.04 EB-WB, (20A350-20A349) (38.21983, -81.52307), locally known as U. S. 60 Witcher Creek Bridge EB & WB, carrying U. S. 60 over Witcher Creek in Kanawha County, the “West Virginia State Police SGT Harold E. Dailey Bridge”; and, be it

Further Resolved, That the Commissioner of the Division of Highways is requested to have made and be placed signs identifying bridge number 20-60-30.4 EB-WB, (20A350-20A349)  (38.21983, -81.52307), locally known as U. S. 60 Witcher Creek Bridge EB & WB, carrying U. S. 60 over Witcher Creek in Kanawha County, the  “West Virginia State Police SGT Harold E. Dailey Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is directed to forward a copy of this resolution to the Commissioner of the Division of Highways and SGT Harold E. Dailey.

At the request of Delegate Cowles and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.

Committee Reports

            Delegate McCuskey, Chair of 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 3rd day of March, 2016, presented to His Excellency, the Governor, for his action, the following bill, signed by the President of the Senate and the Speaker of the House of Delegates:

(Com. Sub. for H. B. 4366), Finding and declaring certain claims against the state and its agencies to be moral obligations of the state.

Delegate Storch, Chair of the Committee on Political Subdivisions, submitted the following report, which was received:

Your Committee on Political Subdivisions has had under consideration:

Com. Sub. for S. B. 263, Allowing travel and other expense reimbursement for members of Municipal Home Rule Board,

And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on Finance.

            In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 263) was referred to the Committee on Finance.

Delegate Storch, Chair of the Committee on Political Subdivisions, submitted the following report, which was received:

Your Committee on Political Subdivisions has had under consideration:

S. B. 306, Permitting sale of county or district property online,

And,

S. B. 573, Prohibiting municipal annexation which would result in unincorporated territory within municipality,

And reports the same back, with amendment, with the recommendation that they each do pass, as amended, but that they each first be referred to the Committee on Government Organization.

            In accordance with the former direction of the Speaker, the bills (S. B. 306 and S. B. 573) were each referred to the Committee on Government Organization.

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

 Com. Sub. for S. B. 591, Relating to voter registration list maintenance and combined voter registration and driver licensing fund,

And reports the same back, with amendment, with the recommendation that it do pass, as amended.

Delegate Ellington, Chair of the Committee on Health and Human Resources, submitted the following report, which was received:

Your Committee on Health and Human Resources has had under consideration:

S. B. 384, Requiring Bureau for Medical Services seek federal waiver for 30-day waiting period for tubal ligation

And,

S. B. 478, Authorizing licensees who sell growlers to offer samples,

And reports the same back with the recommendation that they each do pass, but that they first be referred to the Committee on the Judiciary.

Delegate Ellington, Chair of the Committee on Health and Human Resources, submitted the following report, which was received:

Your Committee on Health and Human Resources has had under consideration:

            Com. Sub. for S. B. 628, Permitting treating physician direct palliative or emergent treatment for patients,

And,

            S. B. 658, Allowing licensed professionals donate time to care of indigent and needy in clinical setting,

And reports the same back with the recommendation that they each do pass.

At  5:23  p.m., the House of Delegates adjourned until 11:00 a.m., Friday, March 4, 2016.