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WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTIETH LEGISLATURE
REGULAR SESSION, 2012
THIRTEENTH DAY
____________
Charleston, W. Va., Monday, January 23, 2012
The Senate met at 1 p.m.
(Senator Kessler, Mr. President, in the Chair.)
Prayer was offered by the Reverend Dennis Sparks, Retired
Executive Director, West Virginia Council of Churches, Charleston,
West Virginia, and Pastor, First Christian Church, Ravenswood, West
Virginia.
Pending the reading of the Journal of Friday, January 20,
2012,
On motion of Senator Chafin, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
At the request of Senator Unger, and by unanimous consent, the
provisions of rule number fifty-four of the Rules of the Senate,
relating to persons entitled to the privileges of the floor, were
suspended in order to grant the Honorable Robin Jean Davis, Justice
of the Supreme Court of Appeals of West Virginia, privileges of the floor for the day.
The Clerk presented a communication from the Board of
Respiratory Care, submitting its annual report for fiscal year 2011
as required by chapter thirty, article one, section twelve of the
code of West Virginia.
Which communication and report were received and filed with
the Clerk.
The Clerk presented a communication from the Office of the
State Treasurer submitting its Debt Capacity Advisory Division's
annual report, in accordance with chapter twelve, article six-b,
section four of the code of West Virginia.
Which report was received and filed with the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 2533--A Bill to amend and
reenact §3-5-23 of the Code of West Virginia, 1931, as amended,
relating to nomination certificates for candidates for public
office; clarifying who may be a candidate; requiring the identities
of signatories to a nominating certificate for a person seeking
ballot access to be made public; requiring the investigation of the
validity of signatures; and the verification of signatures by the
Secretary of State if the office covers more than one county.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. House Bill No. 4072--A Bill to amend and reenact §18-5-4
of the Code of West Virginia, 1931, as amended, relating to
eliminating requirement for county boards of education to meet on
the first Monday of July in years in which there is not a biennial
primary election.
Referred to the Committee on Education.
The Senate proceeded to the fourth order of business.
Senator Browning, from the Committee on Economic Development,
submitted the following report, which was received:
Your Committee on Economic Development has had under
consideration
Senate Bill No. 206, Designating certain property as qualified
capital addition to manufacturing facilities.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 206 (originating in the
Committee on Economic Development)--A Bill to amend and reenact
§11-6F-2 and §11-6F-4 of the Code of West Virginia, 1931, as
amended, all relating to designating certain property as a
qualified capital addition to a manufacturing facility; and extending that property special valuation to the twenty-fifth year
succeeding the year in which the qualified capital addition is
first placed in service.
With the recommendation that the committee substitute do pass;
but under the original double committee reference first be referred
to the Committee on Finance.
Respectfully submitted,
Richard Browning,
Chair.
The bill (Com. Sub. for S. B. No. 206), under the original
double committee reference, was then referred to the Committee on
Finance.
Senator Beach, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Bill No. 215, Specifying unobligated moneys in
Industrial Access Road Fund revert to State Road Fund.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Robert D. Beach,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance.
Senator Beach, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Bill No. 219, Consolidating administration and
enforcement of motor carrier industry.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on the Judiciary.
Respectfully submitted,
Robert D. Beach,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary.
Senator Wells, from the Committee on Military, submitted the
following report, which was received:
Your Committee on Military has had under consideration
Senate Concurrent Resolution No. 3, Requesting Joint Committee
on Government and Finance continue studying issues facing veterans.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Erik P. Wells,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Beach, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 7, Requesting DOH name bridge
in Clendenin, Kanawha County "Smith Brothers Memorial Bridge".
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
Senator Wells, from the Committee on Military, submitted the
following report, which was received:
Your Committee on Military has had under consideration
Senate Resolution No. 4, Honoring Command Sergeant Major Roger
C. Beverage.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Erik P. Wells,
Chair.
At the request of Senator Wells, unanimous consent being
granted, the resolution (S. R. No. 4) contained in the preceding
report from the Committee on Military was taken up for immediate
consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Thereafter, at the request of Senator Unger, and by unanimous
consent, the remarks by Senator Tucker regarding the adoption of
Senate Resolution No. 4 were ordered printed in the Appendix to the
Journal.
On motion of Senator Unger, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and
joint resolution were introduced, read by their titles, and
referred to the appropriate committees:
By Senators Palumbo, D. Facemire, Kessler (Mr. President),
Unger and Jenkins:
Senate Bill No. 376--A Bill to amend and reenact §3-3-2b of
the Code of West Virginia, 1931, as amended, relating to the
provision of absentee ballots to participants of the Address Confidentiality Program.
Referred to the Committee on the Judiciary.
By Senators Barnes and Miller:
Senate Bill No. 377--A Bill to amend and reenact §18A-4-7a of
the Code of West Virginia, 1931, as amended, relating to
employment, promotion and transfer of professional personnel; and
denying transfer within thirty days prior to the instructional
term.
Referred to the Committee on Education.
By Senators Barnes, Plymale, Unger and Tucker:
Senate Bill No. 378--A Bill to amend and reenact §18A-2-9 of
the Code of West Virginia, 1931, as amended, relating to school
personnel; and requiring the employment of assistant principals at
schools with enrollments of three hundred fifty or more students.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Stollings, Laird, Foster, Kessler (Mr. President),
Plymale and Jenkins:
Senate Bill No. 379--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §30-7E-1, §30-7E-2 and §30-7E-3, all relating to
authorizing the West Virginia Board of Examiners for Registered
Professional Nurses to designate programs in which persons
regulated by the board may be monitored while they pursue treatment and recovery for alcohol abuse, chemical dependency or major mental
illness; and voluntary enrollment without being subject to
disciplinary action if the person complies with the goals and
restrictions of the program.
Referred to the Committee on Health and Human Resources; and
then to the Committee on Government Organization.
By Senator Yost:
Senate Bill No. 380--A Bill to amend and reenact §11A-1-9 of
the Code of West Virginia, 1931, as amended, relating to a co-owner
of real property becoming sole owner when he or she pays all of the
property taxes on the real property for a minimum of five years.
Referred to the Committee on the Judiciary.
By Senators Miller, Yost, Klempa, Wills, Laird, D. Facemire,
Chafin, Foster, Kessler (Mr. President), Plymale and Jenkins:
Senate Bill No. 381--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new chapter,
designated §5I-1-1, §5I-1-2, §5I-1-3 and §5I-1-4, all relating to
creating the West Virginia Buy American Act; requiring public
agency construction contracts for public buildings or public works
contain a provision that the iron, steel, manufactured goods, coal
and timber used or supplied be manufactured or produced in the
United States; permitting waivers; providing remedies for
intentional violations; defining terms; making findings; and
declaring policy.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senator Unger:
Senate Bill No. 382--A Bill to amend and reenact §15-12-2,
§15-12-3 and §15-12-10 of the Code of West Virginia, 1931, as
amended, all relating to the sex offender registration; requiring
registration and updating of information in the offender's county
of residence; and adding an internal code reference.
Referred to the Committee on the Judiciary.
By Senators Unger, Beach, Kessler (Mr. President) and Klempa:
Senate Bill No. 383--A Bill to amend and reenact §15-2-5 of
the Code of West Virginia, 1931, as amended, relating to increasing
the supplemental pay of members of the West Virginia State Police
in lieu of overtime pay.
Referred to the Committee on Finance.
By Senators Jenkins, Foster, Stollings, Beach, Kessler (Mr.
President), Plymale and Klempa:
Senate Bill No. 384--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §11-27-39, relating to nursing education faculty;
defining terms; creating a tax credit to encourage nurse faculty to
remain in West Virginia; and assigning powers and duties to the
State Tax Department.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Unger, Beach, Kessler (Mr. President), Klempa and
Jenkins:
Senate Bill No. 385--A Bill to amend and reenact §61-3C-3 of
the Code of West Virginia, 1931, as amended; and to amend and
reenact §61-8A-1 of said code, all relating to updating the
definition of "computer" in the commission of certain crimes.
Referred to the Committee on the Judiciary.
By Senators Unger, Browning, Snyder, Kessler (Mr. President)
and Palumbo:
Senate Bill No. 386--A Bill to amend and reenact §11-24-13f of
the Code of West Virginia, 1931, as amended, relating to taxation
of water's-edge corporations; and providing for clarification of
the entities to be included in a water's-edge group for corporation
net income tax purposes.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Unger and Beach:
Senate Bill No. 387--A Bill to amend and reenact §15-5-20 of
the Code of West Virginia, 1931, as amended, relating to floodplain
management training; requiring all floodplain managers to complete
yearly training; and providing that another manager may take over
the responsibilities of a manager who has not completed the
required training.
Referred to the Committee on Government Organization.
By Senators Wills, Klempa, Tucker, Miller, Snyder, Yost and
Kessler (Mr. President):
Senate Bill No. 388--A Bill to amend and reenact §55-2-21 of
the Code of West Virginia, 1931, as amended, relating to
limitations of actions and suits; and reducing the number of
defendants named in the beginning of a lawsuit by tolling the
statute of limitations against all tortfeasors upon filing direct
claims against tortfeasors.
Referred to the Committee on the Judiciary.
By Senators Unger, Beach, Kessler (Mr. President), Plymale,
Williams, Klempa and Jenkins:
Senate Bill No. 389--A Bill to amend and reenact §15-2-3 and
§15-2-5 of the Code of West Virginia, 1931, as amended, all
relating to maintaining a minimum of eight hundred state troopers
by July 1, 2016; and increasing the salary increase received at the
end of two years of service with the West Virginia State Police to
$580.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senators Wills, Beach, Kirkendoll, Klempa, McCabe, Minard,
Palumbo, Tucker, K. Facemyer, Nohe, Foster, Miller and Plymale:
Senate Joint Resolution No. 7--Proposing an amendment to the
Constitution of the State of West Virginia, amending section 4, article IV; section 1, article VII; section 2, article VII; section
3, article VII; section 4, article VII; and section 16, article VII
thereof, all relating to the creation of the Office of Lieutenant
Governor in the executive department; the joint election of
Governor and Lieutenant Governor; the succession of the Governor by
the Lieutenant Governor; the filling of a vacancy in the Office of
Lieutenant Governor; numbering and designating such proposed
amendment; and providing a summarized statement of the purpose of
such proposed amendment.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
Senators Wills, Kirkendoll, Klempa, McCabe, Minard, Palumbo,
Tucker, Williams, K. Facemyer, Nohe, Foster and Plymale offered the
following resolution:
Senate Concurrent Resolution No. 9--Amending Rule 5a of Joint
Rules of the Senate and House of Delegates, relating to processing
of bills authorizing the promulgation of proposed legislative
rules; and duplication and distribution of proposed legislative
rules.
Resolved by the Legislature of West Virginia:
That Rule 5a of the Joint Rules of the Senate and House of
Delegates be amended to read as follows:
Introduction and Processing of Bills Authorizing the
Promulgation of Proposed Legislative Rules; Filing, Duplication and Distribution of Proposed Legislative Rules.
5a.
(1) On the first day of each regular session of the
Legislature, the cochairs of the legislative rule-making review
committee shall submit to the clerk of the respective houses of the
legislature a copy of all proposed legislative rules which have
been submitted to and considered by the committee pursuant to §29A-
2-11 of the code and which have not been previously submitted to
the Legislature for study, together with the recommendations of the
committee with respect to such rules, a statement of the reasons
for any recommendation that a rule be amended or withdrawn, a
statement that a bill authorizing each legislative rule has been
drafted, and copies as required by each house, of bills for
introduction. To facilitate the submission of the committee's
report and bills of authorization on the first day of each regular
session, the committee shall complete its consideration of rules by
November 30 of each year. The committee may withhold from its
report any proposed legislative rule which was submitted to the
committee fewer that two hundred twenty-five days before the end of
the regular session. The clerk of each house shall submit the
report to his or her house pursuant to §29A-3-12.
_____(2) A "bill authorizing the promulgation of proposed
legislative rules" or a "bill of authorization" is a measure
intended to be enacted as general law, which incorporates by
reference a proposed legislative rule, with or without amendments or substitutions set forth in the bill, and which authorizes the
promulgation and implementation of the proposed legislative rule.
The processing of bills authorizing the promulgation of proposed
legislative rules shall be governed by the standing rules of the
Senate and the House of Delegates, which are supplemented by the
provisions of this joint rule. In the case of any conflict between
this rule and a standing rule of the Senate or the House of
Delegates, the provisions of this rule shall control.
(1) (3) The requirement of either house that bills shall be
presented in duplicate applies to bills authorizing the
promulgation of proposed legislative rules, but does not apply to
the proposed legislative rule which the bill incorporates by
reference. Of the duplicate copies, only the designated original
copy shall have appended thereto the full text of the proposed
legislative rule as finally approved by the agency seeking
permission for its promulgation. Other copies of the full text of
the proposed legislative rule shall be made available to members of
the Legislature as hereinafter provided.
(2) Copies of the full text of each proposed legislative rule
shall be reproduced by printing or duplication by the Clerk prior
to, or as soon as is reasonably practicable after, the introduction
of the bill which would authorize by law the promulgation of the
proposed legislative rule. Prior to such printing or duplication,
a notation shall be affixed to the proposed legislative rule which identifies the bill number of the introduced bill which would
authorize its promulgation and which also identifies the committee
or committees of the house to which the bill is to be referred by
the presiding officer following its introduction. Otherwise, the
copies printed or duplicated shall conform to the copy of the
proposed legislative rule appended to the original bill, so as to
facilitate the consideration and amendment of the rule throughout
the legislative process.
_____(4) Upon introduction on bills authorizing the promulgation of
proposed legislative rules, the clerk shall make available by
electronic means the full text of each legislative rule to be
authorized to each member on the floor of each house, to allow each
member to view the text of each legislative rule.
_____(3) (5) The clerk shall furnish to any member, upon his or her
request, without cost, one copy of the full text of a proposed
legislative rule as reproduced by the clerk in accordance with the
provisions of subsection
(2) (3) of this joint rule. For any
request for an additional copy or copies of the proposed
legislative rule, the member requesting the copy or copies shall
pay to the clerk, in advance, a charge which the clerk has
reasonably determined to be adequate to cover the actual cost of
the printing or duplication:
Provided, That the provisions herein
for the clerk to furnish a member with an additional copy or
copies, with a cost charged, may not interfere with or delay the prompt and otherwise timely consideration of bills of authorization
by the house or its committees or subcommittees.
(4) (6) Whenever the standing rules of either house require
the printing or reprinting of a bill, the rules apply to bills
authorizing the promulgation of a proposed legislative rule with
the same force and effect as they apply to other bills. However,
no printing or reprinting of the proposed legislative rule which is
incorporated by reference in the bill of authorization shall be
required, other than the printing required by subsection (2) of
this joint rule.
(5) (7) Whenever the standing rules of either house require a
bill to be read, or fully and distinctly read, the rules apply to
bills authorizing the promulgation of a proposed legislative rule
with the same force and effect as they apply to other bills.
However, no reading of the proposed legislative rule which is
incorporated by reference in the bill of authorization shall be
required.
Which, under the rules, lies over one day.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 8, Requesting DOH name bridge
at Wellsburg "Bernie Kazienko Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation and Infrastructure.
Senate Resolution No. 7, Opposing US Supreme Court's
constitutional interpretation in Citizens United decision.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on the
Judiciary.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 30, Providing additional means to notify
DMV of purchase of junked vehicle.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird,
McCabe, Miller, Minard, Nohe, Palumbo, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Mr. President)--33.
The nays were: None.
Absent: Plymale--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 30) passed.
The following amendment to the title of the bill, from the
Committee on Transportation and Infrastructure, was reported by the
Clerk and adopted:
Eng. Senate Bill No. 30--A Bill to amend and reenact §17A-4-10
of the Code of West Virginia, 1931, as amended, relating to
vehicles scraped, compressed, dismantled or destroyed; providing an
additional means to notify the division; prescribing form;
extending time period for a person to surrender title; and
providing for the use of additional brands used by other
jurisdictions that are consistent with the National Motor Vehicle
Title Information System.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 96, Redefining basis for
disqualification of prospective jurors.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird,
McCabe, Miller, Minard, Nohe, Palumbo, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Mr. President)--33.
The nays were: None.
Absent: Plymale--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 96) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 118, Terminating
residential lease upon tenant death.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Jenkins, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 100, Relating to fees collected
by circuit court clerks.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Senate Bill No. 129, Relating to descriptions of easements and
rights-of-way.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Sypolt, the following amendment to the
bill was reported by the Clerk and adopted:
On page two, section five-a, lines twelve through twenty-two,
by striking out all of subsection (b) and inserting in lieu thereof
a new subsection, designated subsection (b), to read as follows:
(b) Oil and gas, gas storage and mineral leases
shall not be
are not required to describe the easement
or right-of-way as
provided in subsection (a) of this section, but
shall are required
to describe the land on which the easement or right-of-way will be
situate situated by source of title or reference to a tax map and
parcel, recorded deed, recorded lease, plat or survey sufficient to
reasonably identify and locate the property on which the easement
or right-of-way is
situate: Provided, however, That the easement or
right-of-way is not invalid because of the failure of the easement
or right-of-way to meet the requirements of this subsection.
situated.
The bill (S. B. No. 129), as amended, was then ordered to
engrossment and third reading.
Senate Bill No. 183, Increasing penalties for assault and
battery on athletic official.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
The Senate proceeded to the tenth order of business.
Com. Sub. for Com. Sub. for Senate Bill No. 7, Relating to
administration of Naloxone in suspected drug overdoses.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Tucker, the name of Senator Tucker was removed as a sponsor of
Senate Bill No. 363 (Creating Uniform
Real Property Electronic Recording Act).
On motion of Senator Unger, a leave of absence for the day was
granted Senator Plymale.
Pending announcement of meetings of standing committees of the
Senate, including majority and minority party caucuses,
On motion of Senator Unger, the Senate adjourned until
tomorrow, Tuesday, January 24, 2012, at 11 a.m.
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