sdj-29th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2009
TWENTY-NINTH DAY
____________
Charleston, W. Va., Wednesday, March 11, 2009
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Dennis Sparks, Executive
Director, West Virginia Council of Churches, Charleston, West
Virginia.
The Honorable Jack Yost, a senator from the first district,
accompanied by the Honorable Donna J. Boley, a senator from the
third district, proceeded in administering the presidential oath of
office to Abraham Lincoln, as portrayed by James Dague of Wheeling,
West Virginia. President Lincoln then delivered his Gettysburg
Address and his Springfield Farewell Address to the Senate.
Thereafter, at the request of Senator Edgell, and by unanimous
consent, the presidential oath of office administered by Senator
Yost was ordered printed in the Appendix to the Journal.
Pending the reading of the Journal of Tuesday, March 10, 2009,
On motion of Senator Green, 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.
The Clerk presented a communication from the Court of Claims,
submitting its Crime Victims Compensation Fund report as required
by chapter fourteen, article two-a, section twenty-one of the code
of West Virginia.
Which report was received and filed with the Clerk.
Senator Tomblin (Mr. President) presented a communication from
the Court of Claims, submitting its annual report, in accordance
with chapter fourteen, article two, section twenty-five of the code
of West Virginia.
Which report was received and filed with the Clerk.
Senator Tomblin (Mr. President) presented a communication from
the Joint Committee on Government and Finance, submitting its
annual interim studies report as required by chapter four, article
three, section three of the code of West Virginia.
Which report was received and filed with the Clerk.
The Senate proceeded to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 344, Authorizing mental hygiene commissioners
sign readmission orders.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Minard, from the Committee on Banking and Insurance,
submitted the following report, which was received:
Your Committee on Banking and Insurance has had under
consideration
Senate Bill No. 424, Converting financial institution to
state-chartered bank.
Senate Bill No. 431, Providing in-state medical providers
notice of small group health benefit plan.
Senate Bill No. 452, Relating to Public Employees Insurance
Agency underwriting nonstate employer groups.
And,
Senate Bill No. 489, Allowing Board of Banking and Financial
Institutions receive travel expense compensation.
And reports the same back with the recommendation that they
each do pass; but under the original double committee references
first be referred to the Committee on Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
The bills, under the original double committee references, were then referred to the Committee on Finance.
Senator Minard, from the Committee on Banking and Insurance,
submitted the following report, which was received:
Your Committee on Banking and Insurance has had under
consideration
Senate Bill No. 443, Exempting Insurance Commissioner's civil
investigation records from subpoena.
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,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 445, Removing conservation supervisors'
election certification requirements.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 456, Creating Reduced Cigarette Ignition
Propensity Standard and Fire Prevention Act.
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,
Jeffrey V. Kessler,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and
joint resolution were introduced, read by their titles, and
referred to the appropriate committees:
By Senators Bowman and Unger:
Senate Bill No. 535--A Bill to amend and reenact §60-2-16 of
the Code of West Virginia, 1931, as amended, relating to allowing
counties with contiguous borders with other states where the
closing time for bars is earlier than the closing time set by the
Alcohol Beverage Control Commission to set a closing time at an hour no later than that of the contiguous state.
Referred to the Committee on Government Organization.
By Senators McCabe, Foster, Wells, Palumbo, Plymale and
Stollings:
Senate Bill No. 536--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §18B-3F-1, §18B-3F-2, §18B-3F-3, §18B-3F-4, §18B-3F-5,
§18B-3F-6, §18B-3F-7, §18B-3F-8, §18B-3F-9 and §18B-3F-10, all
relating to reorganization and consolidation of community and
technical colleges; setting forth the powers and duties of the West
Virginia Council for Community and Technical College Education;
providing definitions; legislative findings; setting forth the
development of a strategic reorganization plan; establishing an
administrative planning committee; setting forth membership of the
committee, terms of offices, powers and duties; appointing of an
institutional president and other officers; identifying transfer of
assets and liabilities, operating budgets, orders, policies and
procedures; setting forth employee benefits; and notification
requirements of certain employees of retention or termination by
certain date under certain circumstances.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Minard and McCabe:
Senate Bill No. 537--A Bill to repeal §23-5-17 and §23-5-18 of the Code of West Virginia, 1931, as amended; to amend and reenact
§23-2-1d of said code; to amend and reenact §23-2A-1 of said code;
to amend and reenact §23-2C-8 and §23-2C-21 of said code; to amend
and reenact §23-4-6b of said code; to amend said code by adding
thereto a new section, designated §23-4-8d; to amend and reenact
§23-5-1 and §23-5-3 of said code; and to amend and reenact §33-2-22
of said code, all relating to workers' compensation; eliminating
obsolete sunset provisions; redefining the responsibility of prime
contractors to injured employees of their subcontractors;
clarifying subrogation rights with respect to employees injured by
third parties; providing for a unitary decision-making process in
claims involving the Uninsured Employers Fund; extending the scope
of permissible remedies to include those in the general insurance
code; permitting the recovery of administrative costs in certain
actions; eliminating mandatory allocation in hearing loss claims;
authorizing the adoption of exempt legislative rules; providing
that claims for medical benefits in occupational pneumoconiosis
claims may be made at any time; clarifying that a sixty-day period
applies to various protests; extending the jurisdiction of the
office of judges to hear certain protests; mandating conditional
payments in certain instances; and authorizing the Insurance
Commissioner to compromise and settle claims for moneys due the Old
Fund and Uninsured Employers Fund.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Wells, Foster, Plymale, Barnes, Green, Sypolt,
Kessler, Jenkins, Palumbo, D. Facemire, Unger and White:
Senate Bill No. 538--A Bill to amend and reenact §11-21-22 and
§11-21-22b of the Code of West Virginia, 1931, as amended, all
relating to personal income tax; and authorizing a refundable tax
credit based on federal poverty guidelines.
Referred to the Committee on Finance.
By Senator Caruth:
Senate Bill No. 539--A Bill to amend and reenact §22-3-17 of
the Code of West Virginia, 1931, as amended, relating to requiring
the Department of Environmental Protection to use its authority
under the Water Pollution Control Act to enforce surface mining-
related water pollution violations of effluent limits and water
quality.
Referred to the Committee on Energy, Industry and Mining; and
then to the Committee on the Judiciary.
By Senators Helmick and McCabe:
Senate Bill No. 540--A Bill to amend and reenact §11-6I-3 and
§11-6I-5 of the Code of West Virginia, 1931, as amended; to amend
and reenact §11-10-5e of said code; to amend said code by adding
thereto a new section, designated §11-10-25; to amend and reenact
§11-13Q-22 of said code; to amend and reenact §11-15-3c of said
code; to amend said code by adding thereto a new section, designated §11-15-9m; to amend and reenact §11-21-21, §11-21-22,
§11-21-23 and §11-21-24 of said code; to amend and reenact §11-24-
3a and §11-24-4b of said code; and to amend and reenact §21A-6-1c
of said code, all relating to taxation; specifying authority of the
Tax Commissioner to designate Tax Division documents that may be
sent by personal service, United States postal service, regular
mail, certified mail or registered mail or other means; specifying
statutory burden of proof and presumption against tax exemptions;
specifying inflation adjustment for certain economic opportunity
tax credit entitlement requirements; specifying exclusion of sales
and use of certain motor vehicles and certain trailers and classes
of vehicle and vehicular apparatus from state consumers sales and
use tax on certain vehicles; specifying exclusion of sales and use
of certain motor vehicles and certain trailers and classes of
vehicle and vehicular apparatus from municipal and local consumers
sales and service tax and use tax, or special downtown
redevelopment district excise tax, or special district excise tax
and other sales taxes; authorizing discretionary designation of per
se exemptions from the consumers sales and service tax and use tax
by the Tax Commissioner; specifying a technical correction;
correcting the reference to the licensing provision from chapter
eleven of said code to chapter seventeen-a of said code; specifying
exclusion of federal alternative minimum income taxpayers from
eligibility for property tax payment deferment and assessor's denial of deferment; disqualifying persons who pay the federal
alternative minimum income tax in specified years from
qualification for the senior citizens' tax credit under article
twenty-one, chapter eleven of said code; disqualifying persons who
pay the federal alternative minimum income tax in specified years
from qualification for the low-income family tax credit;
disqualifying persons who pay the federal alternative minimum
income tax in specified years from qualification for the refundable
tax credit for real property taxes paid in excess of four percent
of income; specifying that senior citizen property tax relief
credit is not authorized for tax years beginning on or after
January 1, 2009; defining terms; specifying treatment of certain
income and deduction items for certain regulated investment
companies and real estate investment companies; authorizing state
income tax withholding from the individual's payment of
unemployment compensation; and specifying effective dates.
Referred to the Committee on Finance.
By Senators Caruth, Chafin, Fanning, Guills and D. Facemire:
Senate Bill No. 541--A Bill to amend and reenact §17-16A-26 of
the Code of West Virginia, 1931, as amended, relating to an annual
legislative audit of the Parkways Authority; and requiring the
Parkways Authority to provide certain information.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senators Caruth, Chafin, Fanning and Guills:
Senate Bill No. 542--A Bill to amend and reenact §17-16A-18 of
the Code of West Virginia, 1931, as amended, relating to
terminating tolls on the West Virginia Turnpike no later than 2020.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Finance.
By Senators Caruth, Chafin and Fanning:
Senate Bill No. 543--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §17-16A-11a, relating to prohibiting the West Virginia
Parkways Authority from issuing any additional revenue bonds.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Finance.
By Senators Caruth, Chafin, Fanning and Guills:
Senate Bill No. 544--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §17-16A-22a, relating to requiring the West Virginia
Parkways Authority to pay all indebtedness on schedule without
extending or renewing the debt.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Finance.
By Senators White, Laird, Kessler, Jenkins, D. Facemire and
Unger:
Senate Bill No. 545--A Bill to amend and reenact §23-4-1 of the Code of West Virginia, 1931, as amended, relating to providing
a rebuttable presumption that a volunteer firefighter has developed
a pulmonary disease or sustained a cardiovascular injury for
workers' compensation benefits provided certain conditions of
employment have been met; eliminating the rebuttable presumption
that cardiovascular disease is a compensable injury for
firefighters; and changing the six-month time frame for certain
firefighter injuries to six weeks.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Green, Stollings and D. Facemire:
Senate Bill No. 546--A Bill making a supplementary
appropriation of Lottery Net Profits from any balance of moneys
remaining as an unappropriated balance in Lottery Net Profits to
the Department of Education and the Arts - Division of Culture and
History - Lottery Education Fund, fund 3534, fiscal year 2009,
organization 0432, by supplementing and amending the appropriations
for the fiscal year ending June 30, 2009.
Referred to the Committee on Rules.
By Senators Foster, D. Facemire and Wells:
Senate Bill No. 547--A Bill to amend and reenact §30-5-14 of
the Code of West Virginia, 1931, as amended, relating to the
registration and the permits for operation of pharmacies; and
forbidding the sale of tobacco products in licensed pharmacies.
Referred to the Committee on Health and Human Resources; and
then to the Committee on the Judiciary.
By Senator Bowman:
Senate Bill No. 548--A Bill to amend and reenact §5A-8-15 of
the Code of West Virginia, 1931, as amended, relating to merging
the functions of the Records Management and Preservation Advisory
Committee with the Records Management and Preservation Board.
Referred to the Committee on Government Organization.
By Senators McCabe, Caruth, Bowman, Kessler, Foster, Jenkins,
Stollings, Plymale, Palumbo, Unger, White and Wells:
Senate Bill No. 549--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §5B-2H-1, §5B-2H-2, §5B-2H-3, §5B-2H-4, §5B-2H-5, §5B-
2H-6, §5B-2H-7, §5B-2H-8, §5B-2H-9, §5B-2H-10 and §5B-2H-11, all
relating to the Creative Communities Development Pilot Program;
pronouncing legislative finding and intent; creating the Creative
Communities Development Fund; establishing the Creative Communities
Development Board; providing requirements for applications for the
use of matching funds from the Creative Communities Development
Fund; providing for review of applications by the West Virginia
Development Office; establishing that the Creative Communities
Development Board shall have the authority to approve matching
grants from Creative Communities Development Fund; establishing
matching requirements from applicants; establishing eligible expenditures; defining parameters of agreement between West
Virginia Development Office and a community for use of grant funds;
providing for a review and audit of expenditures by West Virginia
Development Office; and providing for review of Creative
Communities Development Pilot Program.
Referred to the Committee on Economic Development; and then to
the Committee on Finance.
By Senators Prezioso and Plymale:
Senate Bill No. 550--A Bill to amend and reenact §18-7A-38 of
the Code of West Virginia, 1931, as amended, relating to teachers'
retirement; and providing that retired teachers who teach college-
level courses on a noncontract basis may not be limited to fewer
hours of employment than eighteen credit hours a semester.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Green and Bowman:
Senate Bill No. 551--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §5-30-1, §5-30-2, §5-30-3, §5-30-4 and §5-30-5, all
relating to establishment of the Athletic Trainers Registration
Act; providing for registration of athletic trainers with the
Secretary of State; defining "athletic training" and "athletic
trainer"; establishing the Secretary of State as agent for service
of process purposes; authorizing the Secretary of State to issue subpoenas and subpoenas ducem tecum; prohibiting the advertisement
or representation as an athletic trainer unless registered;
providing registration and renewal requirements; providing for
denial, revocation, suspension or refusal to renew registration or
renewal; and allowing the Secretary of State to establish
registration and renewal fees
Referred to the Committee on Government Organization.
By Senators Minard and Kessler:
Senate Bill No. 552--A Bill to repeal §33-15D-1, §33-15D-2,
§33-15D-3, §33-15D-4, §33-15D-5, §33-15D-6, §33-15D-7, §33-15D-8,
§33-15D-9, §33-15D-10 and §33-15D-11 of the Code of West Virginia,
1931, as amended; to amend and reenact §33-16F-1, §33-16F-2, §33-
16F-3, §33-16F-4, §33-16F-5, §33-16F-6, §33-16F-7 and §33-16F-8 of
said code; and to amend said code by adding thereto two new
sections, designated §33-16F-9 and §33-16F-10, all relating to
health insurance; requiring the Insurance Commissioner to invite
carriers and other entities to submit proposals for affordable
health insurance plans; defining terms; specifying that plans do
not create an entitlement; establishing eligibility and standards
for such plans; providing for evaluation of the plans and reports
to the Legislature; providing for continuation of existing limited
benefit plans; and authorizing emergency legislative rules.
Referred to the Committee on Banking and Insurance.
By Senators Laird, Sypolt and Stollings:
Senate Joint Resolution No. 13--Proposing an amendment to the
Constitution of the State of West Virginia, amending section three,
article IX thereof, relating to allowing citizens to vote upon
extending the terms for the office of sheriff to three consecutive
four-year terms; eliminating the provision that if a sheriff serves
any portion of a term, it counts as one of the terms toward the
term limit; providing that no person serving in his or her second
consecutive term as sheriff upon the ratification of this section
in 2010 shall be eligible to serve a third consecutive term
beginning in the year 2011; 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 Caruth, Barnes, K. Facemyer, Hall, McCabe, Sypolt,
Guills, Kessler, Boley, Foster, Stollings, D. Facemire and Unger
offered the following resolution:
Senate Concurrent Resolution No. 22--Requesting the Joint
Committee on Government and Finance study the feasibility of a
statewide database background check system.
Whereas, There exists a need for government and private
employers to have the ability and access to background
investigation checks on applicants for employment; and
Whereas, There are statutes in West Virginia that now provide for background investigation checks on applicants for employment at
racetracks and such procedures should be available to state, county
and municipal government as well as the private sector; and
Whereas, The Criminal Identification Bureau of the West
Virginia State Police has a database that may be accessed by the 55
counties of the state and private sector employers in the counties;
and
Whereas, Developing the means for state, county and municipal
government as well as private employers to request background
investigation checks on applicants for employment in this time of
needed security is in the best interest of the citizens of the
state and could be readily established in the office of the circuit
clerk of each county; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the feasibility of a statewide database
background check system; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Which, under the rules, lies over one day.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 21, Requesting Joint
Committee on Government and Finance study reclassifying counties.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Government
Organization; and then to the Committee on Rules.
Senate Resolution No. 23, Commemorating life of Thomas A.
Colley.
On unfinished business, coming up in regular order, was
reported by the Clerk.
At the request of Senator Caruth, unanimous consent being
granted, the resolution was laid over one day, retaining its place
on the calendar.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 66, Relating to school employees' donated
personal leave days.
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, Boley,
Bowman, Browning, Caruth, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Chafin--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. 66) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Senate Bill No. 66--A Bill to amend and reenact
§18A-4-10f of the Code of West Virginia, 1931, as amended, relating
to leave donation program; eligibility for receiving the donated
leave; purpose for which the leave was transferred; and return of
personal leave days which were donated from one school employee to
another.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 306, Increasing pipeline companies'
special license fees to Public Service Commission.
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, Boley,
Bowman, Browning, Caruth, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Chafin--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. 306) 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. 370, Relating to community
corrections program fees.
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, Boley,
Bowman, Browning, Caruth, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Chafin--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. 370) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 238, Relating to unlawful
discriminatory practices generally.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Com. Sub. for Senate Bill No. 318, Expanding Division of
Protective Services' law-enforcement authority over state property
under certain circumstances.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Com. Sub. for Senate Bill No. 375, Relating to Office of
Coalfield Community Development master land use plans.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
The Senate proceeded to the eleventh order of business and the
introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senators Plymale, Oliverio and Caruth.
Thereafter, at the request of Senator Kessler, and by
unanimous consent, the remarks by Senators Plymale and Oliverio were ordered printed in the Appendix to the Journal.
At the request of Senator Guills, unanimous consent being
granted, the remarks by Senator Caruth were ordered printed in the
Appendix to the Journal.
On motion of Senator Edgell, a leave of absence for the day
was granted Senator Chafin.
Pending announcement of meetings of standing committees of the
Senate, including a majority party caucus,
On motion of Senator Edgell, the Senate adjourned until
tomorrow, Thursday, March 12, 2009, at 11 a.m.
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