sdj-58th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2009
FIFTY-EIGHTH DAY
____________
Charleston, W. Va., Thursday, April 9, 2009
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Greg Godwin, Concord United
Methodist Church, Athens, West Virginia. Shady Spring High School
Choir, Shady Spring, West Virginia, then proceeded in the singing
of "Somebody's Knocking at Your Door" and "My Home Among the
Hills".
Pending the reading of the Journal of Wednesday, April 8,
2009,
On motion of Senator Edgell, 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 Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 12, Allowing 2-year motorcycle registration period.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On
page eight, section three, line fifty-seven, by striking
out "$70.50" and inserting in lieu thereof "$17.50".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 12, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 12) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 424, Converting financial institution to
state-chartered bank.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Senate Bill No. 424--
A Bill to amend and reenact §31A-4A-
1, §31A-4A-2, §31A-4A-3 and §31A-4A-4 of the Code of West Virginia,
1931, as amended, all relating to the conversion of banks and other
financial institutions to a West Virginia state-chartered bank;
allowing any bank, thrift or credit union organized under the laws
of the United States or any other state to convert into a state-
chartered bank.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 424, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 424) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 476, Relating to "financial institution"
definition.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 493, Transferring central registry for
head injuries to Center for Excellence in Disabilities.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 503, Defining "sound financial
condition".
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2009, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 532, Creating
WV SAFE Mortgage Licensing Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
pages five through eleven, by striking out all of section
one and inserting in lieu thereof a new section one, to read as
follows:
§31-17-1. Definitions and general provisions.
As used in this article:
(7) (a) "Additional charges" means every type of charge
arising out of the making or acceptance of a primary or subordinate
mortgage loan, except finance charges, including, but not limited
to, official fees and taxes, reasonable closing costs and certain
documentary charges and insurance premiums and other charges which
definition is to be read in conjunction with and permitted by
section one hundred nine, article three, chapter forty-six-a of
this code;
(13) (b) "Affiliated" means persons under the same ownership
or management control. As to corporations, limited liability
companies or partnerships, where common owners manage or control a
majority of the stock, membership interests or general partnership
interests of one or more such corporations, limited liability
companies or partnerships, those persons are considered affiliated.
In addition, persons under the ownership or management control of
the members of an immediate family shall be considered affiliated.
For purposes of this section, "immediate family" means mother,
stepmother, father, stepfather, sister, stepsister, brother,
stepbrother, spouse, child and grandchildren;
(12) (c) "Amount financed" means the total of the following
items to the extent that payment is deferred:
(a) (1) The cash price of the goods, services or interest in
land, less the amount of any down payment, whether made in cash or
in property traded in;
(b) (2) The amount actually paid or to be paid by the seller
pursuant to an agreement with the buyer to discharge a security
interest in or a lien on property traded in; and
(c) (3) If not included in the cash price:
(i) (A) Any applicable sales, use, privilege, excise or
documentary stamp taxes;
(ii) (B) Amounts actually paid or to be paid by the seller for
registration, certificate of title or license fees; and
(iii) (C) Additional charges permitted by this article;
(10) (d) "Applicant" means a person who has applied for a
lender's, or broker's or loan originator's lender or broker
license;
(5) (e) "Broker" means any person acting in the regular course
of business who, for a fee or commission or other consideration,
negotiates or arranges, or who offers to negotiate or arrange, or
originates, processes or assigns a primary or subordinate mortgage
loan between a lender and a borrower. A person is considered to be
acting in the regular course of business if he or she negotiates or
arranges, or offers to negotiate or arrange, or originates,
processes or assigns any primary or subordinate mortgage loans in
any one calendar year; or if he or she seeks to charge a borrower or receive from a borrower money or other valuable consideration in
any primary or subordinate mortgage transaction before completing
performance of all broker services that he or she has agreed to
perform for the borrower;
(6) (f) "Brokerage fee" means the fee or commission or other
consideration charged by a broker or loan originator for the
services described in subdivision (5) (e) of this section;
(9) (g) "Commissioner" means the Commissioner of Banking of
this state;
(8) (h) "Finance charge" means the sum of all interest and
similar charges payable directly or indirectly by the debtor
imposed or collected by the lender incident to the extension of
credit as coextensive with the definition of "loan finance charge"
set forth in section one hundred two, article one, chapter
forty-six-a of this code;
(4) (i) "Lender" means any person who makes or offers to make
or accepts or offers to accept or purchases or services any primary
or subordinate mortgage loan in the regular course of business. A
person is considered to be acting in the regular course of business
if he or she makes or accepts, or offers to make or accept, more
than five any primary or subordinate mortgage loans in any one
calendar year;
(11) (j) "Licensee" means any person duly licensed by the
commissioner under the provisions of this article or article
seventeen-a of this chapter as a lender, broker or mortgage loan
originator;
(15) (k) "Loan originator" means an individual who, on behalf
of a licensed mortgage broker, under the direct supervision and
control of a licensee who is engaged in brokering activity, and in
exchange for compensation by that broker, performs any of the
services described in subsection (5) of this section "Nationwide
Mortgage Licensing System and Registry" means a mortgage licensing
system developed and maintained by the Conference of State Bank
Supervisors and the American Association of Residential Mortgage
Regulators for the licensing and registration of licensed mortgage
brokers and lenders licensed under this article and mortgage loan
originators licensed under article seventeen-a of this chapter;
(3) (l) "Person" means an individual, partnership,
association, trust, corporation or any other legal entity, or any
combination thereof;
(1) (m) "Primary mortgage loan" means a consumer loan made to
an individual which is secured, in whole or in part, by a primary
mortgage or deed of trust upon any interest in real property used
as an owner-occupied residential dwelling with accommodations for
not more than four families; any loan primarily for personal,
family or household use that is secured by a mortgage, deed of
trust or other equivalent consensual security interest on a
dwelling as defined in Section 103(v) of the Truth in Lending Act
or residential real estate upon which is constructed or intended to
be constructed a dwelling;
(14) (n) "Servicing" or "servicing a residential mortgage
loan" means through any medium or mode of communication the collection or remittance for, or the right or obligation to collect
or remit for another lender, note owner or noteholder, payments of
principal, interest, including sales finance charges in a consumer
credit sale, and escrow items as insurance and taxes for property
subject to a residential mortgage loan; and
(2) (o) "Subordinate mortgage loan" means a consumer loan made
to an individual which is secured, in whole or in part, by a
mortgage or deed of trust upon any interest in real property used
as an owner-occupied residential dwelling with accommodations for
not more than four families, which property any loan primarily for
personal, family or household use that is secured by a mortgage,
deed of trust or other equivalent consensual security interest on
a dwelling as defined in Section 103(v) of the Truth in Lending Act
or residential real estate upon which is constructed or intended to
be constructed a dwelling
and is subject to the lien of one or more
prior recorded mortgages or deeds of trust.;
On page twenty-two, section four, line one hundred fifteen, by
striking out "$100,000" and inserting in lieu thereof "$75,000";
And,
On page twenty-two, section four, line one hundred seventeen,
by striking out "$150,000" and inserting in lieu thereof
"$100,000".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 532, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 532) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 532) takes effect July 1,
2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 595, Relating to assignment of child
support obligations.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 3. APPLICATION FOR AND GRANTING OF ASSISTANCE.
§9-3-4. Assignment of support obligations.
Any recipient of financial assistance under the program of
state and federal assistance established by Title IV of the federal
Social Security Act of 1965, as amended, or any successor act
thereto, shall, as a condition of receiving such assistance funded
under this part, assign to the Department of Health and Human
Resources all rights, title and interest any right the family
member may have (on behalf of the family member or of any other
person for whom the family member has applied for or is receiving
such assistance) to the receipt of support and maintenance moneys
from any other person, not exceeding the total amount of assistance
provided so paid to the family, which accrue (or have accrued) before the date the family ceases to receive accrues during the
period that the family receives assistance under the program. The
assignment, on and after the date the family ceases to receive
assistance under the program, does not apply with respect to any
support (other than support collected pursuant to 42 U.S.C. §664)
which accrued before the family received such assistance and which
the state has not collected by the date the family ceases to
receive assistance under the program.
Persons responsible for support and maintenance shall include
all persons who under the laws of the state of West Virginia owe
obligations of support or maintenance to a child or to the
caretaker of a child. The assignment contemplated herein shall
include all amounts of support and maintenance which accrued to the
recipient of assistance and was not received prior to the
recipient's receipt of assistance, and all amounts of support and
maintenance which accrue during recipient's receipt of assistance:
Provided, That subject to applicable federal and state laws, the
assignment may not exceed the total amount of assistance provided
to the family.
Each applicant for assistance subject to the assignment
established herein in this section shall (during the application
process) be informed in writing of the nature of the assignment.
Any payment of federal and state assistance made to or for the
benefit of any child or children or the caretaker of a child or
children creates a debt due and owing to the Department of Health
and Human Resources by the person or persons responsible for the support and maintenance of such the child, children or caretaker in
an amount equal to the amount of assistance money paid: Provided,
That the debt shall be is limited by the amount established in any
court order or final decree of divorce if the amount in such the
order or decree is less than the amount of assistance paid.
The assignment hereunder under this section shall subrogate
the Department of Health and Human Resources to the rights of the
child, children or caretaker to the prosecution or maintenance of
any action or procedure existing under law providing a remedy
whereby the Department of Health and Human Resources may be
reimbursed for moneys expended on behalf of the child, children or
caretaker. The Department of Health and Human Resources shall
further be subrogated to the debt created by any order or decree
awarding support and maintenance to or for the benefit of any
child, children or caretaker included within the assignment
hereunder under this section and shall be empowered to receive such
money judgments and endorse any check, draft, note or other
negotiable document in payment thereof.
The assignment created hereunder under this section shall be
released upon closure of the assistance case and the termination of
assistance payments except for such support and maintenance
obligations accrued and owing at the time of closure which shall be
are necessary to reimburse the department for any balance of
assistance payments made.
The Department of Health and Human Resources may, at the
election of the recipient, continue to receive support and maintenance moneys on behalf of the recipient following closure of
the assistance case and shall distribute such the moneys to the
caretaker, child or children. The department of health and human
resources shall notify in writing all appropriate persons of the
terms of the release of assignment hereunder.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 595, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 595) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 632, Requiring insurers share certain
information with Bureau for Medical Services.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2009, of
Eng. Com. Sub. for Senate Bill No. 672, Creating Mental Health
Stabilization Act of 2009.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 669, Extending Preventative Care Pilot
Program.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
pages two and three, section three, lines ten through
fourteen, after "2011" by changing the colon to a period and
striking out the following proviso: Provided, That those providers
which are in operation shall continue to have the ability to offer
the prepaid health services as provided under the pilot until such
time as they chose to end the service.;
On page four, section seven, line twenty, after the word
"months" by changing the period to a semicolon and inserting the
following
: (iv) Notwithstanding the provisions of (i),(ii) or
(iii) of this subsection, a participating provider may offer a plan
to an individual if the individual is covered by a high deductible health benefit plan or policy, and a participating provider may
offer a plan to an employer group if the employer group is covered
by a high deductible health benefit plan or policy. The
participating provider shall give the perspective individual or
employer a notice that indicates that the payment for the prepaid
services may not count towards a health benefit plan deductible and
that credit towards the deductible will depend on the health
benefit policy or certificate language. The Insurance Commissioner
shall approve the form of the notice to be used by the provider.
For the purpose of this section, "high deductible health benefit
plan" means a health benefit plan with a minimum individual annual
deductible of $3,000 or, if applicable, a family annual deductible
of $3,000. Any employer who has converted its health benefit plan
from a low deductible plan to a high deductible health benefits
plan may not purchase a plan from a participating provider for six
months from the date of conversion. Any individual who has
converted his or her health benefit policy from a low deductible
health policy to a high deductible plan may not purchase a plan
from a participating provider for three months from date of
conversion.;
On page five, section seven, by striking out all of
subdivision (3) and inserting in lieu thereof a new subdivision
(3), to read as follows:
(3) On or before July 1, 2009, the Health Care Authority and
the Insurance Commissioner shall propose a rule for legislative
approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to permit participation by a
subscriber or employer with a comprehensive high deductible plan if
the subscriber or employer is able to demonstrate that the
participation will not negatively impact the coverage that is
currently offered or will be offered by the employer. The rule
shall provide for notice to the subscriber or employer that the
payment for the prepaid services may or may not count towards the
health insurance deductible, the determination of which will depend
on the health insurance policy language.;
And,
Eng. Senate Bill No. 669--A Bill to amend and reenact §16-2J-3
and §16-2J-7 of the Code of West Virginia, 1931, as amended, all
relating to extending the Preventative Care Pilot Program (PCPP)
for two years under certain conditions; increasing the number of
parties the Health Care Authority and the Insurance Commissioner
could permit to participate in the PCPP; allowing sales to those
with high deductible health benefit plans in certain circumstances;
and providing notice to the parties that prepaid services under the
program may not count towards applicable health insurance
deductibles.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 669, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 669) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 764, Providing race election results
certification procedure.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 2404, Relating to inmate reimbursement for
medical services provided to persons held in regional jails.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2738, Registering protective
orders with the West Virginia Supreme Court of Appeals.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2757, Relating to financial
audits of insurers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3082, Relating to the
gathering and reporting of foreclosure data and statistics.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 3208, Including the hours of
training county board members have acquired.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators White, Oliverio and Guills.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect
July 1, 2009, of
Eng. House Bill No. 3229, Relating to creation of the Science
and Research Council.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 62--Requesting that the Joint
Committee on Government and Finance authorize the study of the
creation of art, entertainment and enterprise districts within
political subdivisions.
Referred to the Committee on Government Organization; and then
to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 75--Requesting the Big Otter
Overpass on Interstate 79 in Clay County, specifically bridge
number 08-79-39.91(2684), be named the "Pearl Harbor: PFC Carey K.
Stockwell Memorial Bridge".
Referred to the Committee on Transportation and
Infrastructure.
Executive Communications
The Clerk then presented a communication from His Excellency,
the Governor, advising that on April 8, 2009, he had approved
Enr.
Committee Substitute for House Bill No. 2795.
The Senate proceeded to the fourth order of business.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 57, Requesting Joint
Committee on Government and Finance study proposed new state
business and occupation tax on high-voltage electric power
transmission lines.
Senate Concurrent Resolution No. 59, Requesting Joint
Committee on Government and Finance study improving and updating
severance tax on natural gas and oil.
Senate Concurrent Resolution No. 60, Requesting Joint
Committee on Government and Finance study grants through Economic
Development Grant Committee.
Senate Concurrent Resolution No. 62, Requesting Joint
Committee on Government and Finance study tax structure.
Senate Concurrent Resolution No. 64, Requesting Joint
Committee on Government and Finance study carbon dioxide cap and
trade proposals.
Senate Concurrent Resolution No. 65, Requesting Joint
Committee on Government and Finance study fireworks' sale, storage
and usage.
Senate Concurrent Resolution No. 66, Requesting Joint
Committee on Government and Finance study costs of highways, sewers
and water projects.
And,
Senate Concurrent Resolution No. 67, Requiring Joint Committee
on Government and Finance study asbestos trust disclosure issues.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio
.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2335, Relating to the
federal "Yellow Ribbon G. I. Education Enhancement Program".
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 2, 2009;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
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
Eng. Com. Sub. for House Bill No. 2695, Providing criminal
penalties for a hunter who fails to render aid to a person the
hunter shoots while hunting.
With amendments from the Committee on Natural Resources pending;
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 8, 2009;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Natural Resources to which the
bill was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2695) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Natural Resources, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That
§20-2-27, §20-2-28 and
§20-2-57 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and to amend
said code by adding thereto three new sections, designated
§20-2-
42x
, §20-2-57a and §20-2-57b, all to read as follows:
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-27. Necessity for license.
Except as otherwise provided by law, no resident who has
reached his or her fifteenth birthday and who has not reached his
or her sixty-fifth birthday before January 1, 2010, and no nonresident shall at any time take, hunt, pursue, trap for, kill or
chase any wild animals, wild birds, or fish for, take, kill or
catch any fish, amphibians or aquatic life of any kind whatsoever
in this state without first having secured a license or permit and
then only during the respective open seasons, except that a
nonresident who has not reached his or her fifteenth birthday may
fish for, take, kill or catch any fish, amphibians or aquatic life
of any kind whatsoever in this state without first having secured
a license or permit. No A person under the age of fifteen years
shall not hunt or chase any wild animals or wild birds upon lands
of another unless accompanied by a licensed adult.
A resident or nonresident member of any club, organization or
association or persons owning or leasing a game preserve or fish
preserve, plant or pond in this state shall not hunt or fish
therein without first securing a license or permit as required by
law: Provided, however, That resident landowners or their resident
children, or bona fide resident tenants of such land, may, without
a permit or license, hunt and fish on their own land during open
seasons in accordance with laws and regulations rules applying to
such hunting and fishing unless such the lands have been designated
as a wildlife refuge or preserve.
Licenses and permits shall be of the kinds and classes set
forth in this article and shall be conditioned upon the payment of
the fees established therefor for the licenses and permits.
§20-2-28. When licenses or permits not required.
Persons in the following categories shall are not be required to obtain licenses or permits as indicated:
(a) Bona fide resident landowners or their resident children,
or resident parents, or bona fide resident tenants of such the land
may hunt, trap or fish on their own land during open season in
accordance with the laws and regulations rules applying to such the
hunting, trapping and fishing without obtaining a license, to do so
unless such the lands have been designated as a wildlife refuge or
preserve.
(b) Any bona fide resident of this state who is totally blind
may fish in this state without obtaining a fishing license. to do
so A written statement or certificate from a duly licensed
physician of this state showing the resident to be totally blind
shall serve in lieu of a fishing license and shall be carried on
the person of the resident at all times while he or she is fishing
in this state.
(c) All residents of West Virginia on active duty in the armed
forces of the United States of America, while on leave or furlough,
shall have the right and privilege to may hunt, trap or fish in
season in West Virginia without obtaining a license. to do so
Leave or furlough papers shall serve in lieu of any such license
and shall be carried on the person at all times while trapping,
hunting or fishing.
(d) In accordance with the provisions of section twenty-seven
of this article, any resident sixty-five years of age or older
before January 1, 2010, is not required to have a license to hunt,
trap or fish during the legal seasons in West Virginia, but in lieu of such the license any such the person shall at all times while
hunting, trapping or fishing carry on his or her person a valid
West Virginia driver's license or nondriver identification card
issued by the Division of Motor Vehicles.
(e) Residents of the state of Maryland who carry hunting or
fishing licenses valid in that state may hunt or fish from the West
Virginia banks of the Potomac River without obtaining licenses, to
do so but the hunting or fishing shall be confined to the fish and
waterfowl of the river proper and not on its tributaries:
Provided, That the state of Maryland shall first enter into a
reciprocal agreement with the director extending a like privilege
of hunting and fishing on the Potomac River from the Maryland banks
of said the river to licensed residents of West Virginia without
requiring said the residents to obtain Maryland hunting and fishing
licenses.
(f) Residents of the state of Ohio who carry hunting or
fishing licenses valid in that state may hunt or fish on the Ohio
River or from the West Virginia banks of the river without
obtaining licenses, to do so but the hunting or fishing shall be
confined to fish and waterfowl of the river proper and to points on
West Virginia tributaries and embayments identified by the
director: Provided, That the state of Ohio shall first enter into
a reciprocal agreement with the director extending a like privilege
of hunting and fishing from the Ohio banks of the river to licensed
residents of West Virginia without requiring the residents to
obtain Ohio hunting and fishing licenses.
(g) Any resident of West Virginia who was honorably discharged
from the armed forces of the United States of America and who
receives a veteran's pension based on total permanent
service-connected disability as certified to by the Veterans
Administration shall be permitted to may hunt, trap or fish in this
state without obtaining a license. therefor The director shall
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
setting forth the procedure for the certification of the veteran,
manner of applying for and receiving the certification and
requirements as to identification while said the veteran is
hunting, trapping or fishing.
(h) Any disabled veteran who is a resident of West Virginia
and who, as certified to by the Commissioner of Motor Vehicles, is
eligible to be exempt from the payment of any fee on account of
registration of any motor vehicle owned by such the disabled
veteran as provided in section eight, article ten, chapter
seventeen-a of this code shall be permitted to hunt, trap or fish
in this state without obtaining a license. therefor The director
shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
setting forth the procedure for the certification of the disabled
veteran, manner of applying for and receiving the certification and
requirements as to identification while the disabled veteran is
hunting, trapping or fishing.
(i) Any resident or inpatient in any state mental health, health or benevolent institution or facility may fish in this
state, under proper supervision of the institution involved,
without obtaining a fishing license. to do so A written statement
or certificate signed by the superintendent of the mental health,
health or benevolent institution or facility in which the resident
or inpatient, as the case may be, is institutionalized shall serve
in lieu of a fishing license and shall be carried on the person of
the resident or inpatient at all times while he or she is fishing
in this state.
(j) Any resident who is developmentally disabled, as certified
by a physician and the Director of the Division of Health, may fish
in this state without obtaining a fishing license. to do so As
used in this section, "developmentally disabled" means a person
with a severe, chronic disability which:
(1) Is attributable to a mental or physical impairment or a
combination of mental and physical impairments;
(2) Is manifested before the person attains age twenty-two;
(3) Results in substantial functional limitations in three or
more of the following areas of major life activity: (A) Self-care;
(B) receptive and expressive language; (C) learning; (D) mobility;
(E) self-direction; (F) capacity for independent living; and (G)
economic self-sufficiency; and
(4) Reflects the person's need for a combination and sequence
of care, treatment or supportive services which are of lifelong or
extended duration and are individually planned and coordinated.
(k) A student eighteen years of age or younger receiving instruction in fly fishing in a public, private, parochial or
Christian school in this state may fly fish in the state for catch
and release only without obtaining a fishing license to do so while
under the supervision of an instructor authorized by the school.
§20-2-42x. Class XS resident senior hunting, fishing and trapping
license.
A Class XS license is a resident senior hunting, fishing and
trapping license and entitles the licensee to hunt and trap for all
legal species of wild animals and wild birds, to fish for all legal
species of fish and to take frogs in all counties of the state,
except as prohibited by the rules of the director or Natural
Resources Commission and when additional licenses, stamps or
permits are required. No additional fees shall be required of
Class XS licensees for a Class CS stamp or a Class O stamp. The
Class XS license shall be issued only to residents or aliens
lawfully residing in the United States who have been domiciled
residents of West Virginia for a period of thirty consecutive days
or more immediately prior to the date of their application for a
license and who reach sixty-five years of age on or after January
1, 2010. The fee for the Class XS license shall be $15. Once
issued, the Class XS license shall remain valid for the lifetime of
the purchaser without payment of additional fees for the privileges
associated with the Class X license, Class CS stamp and the Class
O stamp. This is a base license and does not require the purchase
of a prerequisite license to participate in the activities
specified in this section, except as noted.
§20-2-57. Negligent shooting, wounding or killing of livestock
while hunting; criminal penalties.
It is unlawful for any person, while engaged in hunting,
pursuing, taking or killing wild animals or wild birds, to
carelessly or negligently shoot, wound or kill livestock, or to
destroy or injure any other chattels or property.
Any person who, in the act of hunting, pursuing, taking or
killing of wild animals or wild birds, in any manner injures any
person or property shall file with the director a full description
of the accident or other casualty, including such information as
the director may require. Such report must be filed during a
period not to exceed seventy-two hours following such incident.
Any person violating this section subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $1,000 nor more than $10,000 not more than $1,000, or
imprisoned in the county confined in jail not more than one year
ninety days, or both fined and imprisoned confined. Restitution of
the value of the livestock, chattel or property injured, damaged or
destroyed shall be required upon conviction.
§20-2-57a.
Negligent or reckless shooting, wounding or killing of
another person while hunting; duty to render reasonable
assistance; suspension of hunting and fishing license;
criminal penalties.
(a) It is unlawful for any person, while engaged in the act of
hunting, pursuing, taking or killing wild animals or wild birds, to
negligently shoot, wound, injure or kill another person.
(b) Any person who negligently shoots, wounds, injures or
kills another person while hunting with a firearm, bow and arrow,
or other hunting weapon is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000 or confined
in jail for not more than six months, or both fined and confined.
(c) Any person who recklessly or due to gross negligence
shoots, wounds, injures or kills another person while hunting with
a firearm, bow and arrow, or other hunting weapon is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $2,500 or confined in jail for not more than one year, or both
fined and confined.
(d)(1) Any person who shoots, wounds or injures another person
while hunting with a firearm, bow and arrow, or other hunting
weapon and knowingly refuses or fails to render reasonable
assistance to the injured person is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than $500 nor more
than $2,500 and confined in jail for not less than thirty days nor
more than one year.
(2) As used in this section, "reasonable assistance" means aid
appropriate to the circumstances, including, but not limited to,
obtaining immediate assistance from a law enforcement officer, 911
dispatcher, emergency medical provider or other medical personnel.
(e) Any person who shoots, wounds or injures another person
while hunting with a firearm, bow and arrow, or other hunting
weapon and knowingly refuses or fails to render reasonable
assistance to the injured person who has sustained a serious bodily injury or dies as a result of his or her injuries is guilty of a
felony and, upon conviction thereof, shall be fined not less than
$750 nor more than $5,000 and imprisoned in a state correctional
facility for not less than one year nor more than five years.
(f) Persons found guilty of committing a misdemeanor under
this section shall have their hunting and fishing licenses
suspended for a period of five years from the date of conviction or
the date of release from confinement, whichever is later.
(g) Persons found guilty of committing a felony offense under
this section shall have their hunting and fishing licenses
suspended for a period of ten years from the date of conviction or
the date of release from incarceration, whichever is later.
§20-2-57b. Prohibition and offense of hunting while intoxicated;
offense of shooting another person when hunting while
intoxicated; suspension of hunting and fishing license;
criminal penalties.
(a) It is unlawful for any person to hunt, pursue, take or
kill wild animals or wild birds while:
(1) Under the influence of alcohol;
(2) Under the influence of any controlled substance;
(3) Under the influence of any other drug;
(4) Under the combined influence of alcohol and any controlled
substance or any other drug; or
(5) Having an alcohol concentration in his or her blood of
eight hundredths of one percent or more by weight.
(b) Any person violating subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $100 nor more than $500 or confined in jail for
not less than thirty days nor more than one hundred days, or both
fined and confined.
(c) It is unlawful for any person
to shoot, wound or injure
another person while hunting with a firearm, bow and arrow, or
other hunting weapon
while:
(1)
Under
the influence of alcohol;
(2)
Under
the influence of any controlled substance;
(3)
Under
the influence of any other drug;
(4)
Under
the combined influence of alcohol and any controlled
substance or any other drug; or
(5) Having an alcohol concentration in his or her blood of
eight hundredths of one percent or more, by weight.
(d) Any person violating subsection (c) of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $500 nor more than $1,500 or confined in jail
for not less than two months nor more than one year, or both fined
and confined.
(e) It is unlawful for any person
to
kill another person while
hunting with a firearm, bow and arrow, or other hunting weapon
while:
(1)
Under
the influence of alcohol;
(2)
Under
the influence of any controlled substance;
(3)
Under
the influence of any other drug;
(4)
Under
the combined influence of alcohol and any controlled substance or any other drug; or
(5) Having an alcohol concentration in his or her blood of
eight hundredths of one percent or more, by weight.
(f) Any person violating subsection (e) of this section is
guilty of a felony and, upon conviction thereof, shall be fined not
less than $1,000 nor more than $5,000 or imprisoned in a state
correctional facility for not less than one year nor more than
three years, or both fined and imprisoned.
(e) Persons found guilty of committing an offense under this
section shall have their hunting and fishing licenses suspended for
a period of five years from the date of conviction or the date of
release from incarceration, whichever is later.
(f) Persons found guilty of committing a felony offense under
this section shall have their hunting and fishing licenses
suspended for a period of ten years from the date of conviction or
the date of release from incarceration, whichever is later.
(g) Any person who
shoots, wounds, injures or kills another
person while hunting with a firearm, bow and arrow, or other
hunting weapon
while intoxicated in violation of this section has
the same duty and obligation to render reasonable assistance to the
injured person as is set forth in section fifty-seven-a of this
article, and is subject to the additional penalties set forth
therein for knowingly refusing or failing to render reasonable
assistance.
The bill (Eng. Com. Sub. for H. B. No. 2695), as amended, was
then ordered to third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2723, Authorizing liens by
municipalities and requiring administrative procedures for the
assessment and collection of delinquent municipal fees.
With amendments from the Committee on Government Organization
pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 7, 2009;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Government Organization to
which the bill was first referred.
Respectfully submitted,
Walt Helmick,
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
Eng. Com. Sub. for House Bill No. 2788, Protecting
incapacitated adults from abuse or neglect by a caregiver.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2788) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2870, Extending the deadline
of the buyback provision provided under the Teachers' Defined
Contribution Retirement System to the State Teachers Retirement
System.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2870) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2931, Removing a severance tax on timber
for tax years 2010 through 2013.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2931) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration, read a first time and ordered to second reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2976, Requiring the State
Fire Commission to promulgate rules pertaining to the State
Building Code.
With an amendment from the Committee on the Judiciary pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 7, 2009;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 3047, Clarifying that the Director of the
Public Employees Insurance Agency is authorized to enter into
capitated provider arrangements for provision of primary health
care services.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 3047) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3074, Allowing the Secretary
of State to notify people with delinquent taxes by certified mail.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3074) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3170, Clarifying the filing and review of
the periodic accountings of conservators of incapacitated protected
persons.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 3170) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3314, Relating to concealed
handgun licensing.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3314) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
The Senate proceeded to the sixth order of business.
Senators Helmick, Foster and Plymale offered the following
resolution:
Senate Concurrent Resolution No. 69--
Urging the members of
West Virginia's congressional delegation to sponsor and support the
Main Street Fairness Act.
Whereas, The 1967 Bellas Hess and the 1992 Quill Supreme Court
decisions denied states the authority to require the collection of
sales and use taxes by out-of-state sellers that have no physical
presence in the taxing state; and
Whereas, The combined weight of the inability to collect sales
and use taxes on remote sales through traditional carriers and the
tax erosion due to electronic commerce threatens the future viability of the sales tax as a stable revenue source for state and
local governments; and
Whereas, The Center for Business and Economic Research at the
University of Tennessee has estimated that states lost as much as
$15 billion in 2008 because they were not able to collect taxes on
remote sales, including sales on the internet; and
Whereas, The same study, estimated that West Virginia lost as
much as $50 million in 2008 because of this inability to require
remote sellers to collect our state's sales and use taxes; and
Whereas, Since 1999, state legislators, governors, local
elected officials, state tax administrators and representatives of
the private sector have worked to develop a streamlined sales and
use tax collection system for the 21st century; and
Whereas, Between 2001 and 2004, West Virginia and 39 other
states enacted legislation expressing the intent of the state to
simplify the state's sales and use tax collection systems and to
participate in multistate discussions to finalize and ratify an
interstate agreement to streamline collection of the states' sales
and use taxes; and
Whereas, On November 12, 2002, state delegates unanimously
ratified the Streamlined Sales and Use Tax Agreement, which
substantially simplifies state and local sales tax systems, removes
the burdens to interstate commerce that were of concern to the
Supreme Court and protects state sovereignty; and
Whereas, The Streamlined Sales and Use Tax Agreement provides
the states with a blueprint to create a simplified and more uniform sales and use tax collection system that, when implemented, allows
justification for Congress to overturn the Bellas Hess and Quill
decisions; and
Whereas, West Virginia enacted legislation in 2003 to bring
this state's sales and use tax statutes into compliance with the
Streamlined Sales and Use Tax Agreement; and
Whereas, By March 1, 2009, Arkansas, Indiana, Iowa, Kansas,
Kentucky, Michigan, Minnesota, Nevada, Nebraska, North Carolina,
North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah,
Vermont, Washington, West Virginia, Wisconsin and Wyoming,
representing over 40 percent of the total population of the United
States, enacted legislation to bring their state's sales and use
tax statutes into compliance with the agreement; and
Whereas, The West Virginia Legislature and our colleagues in
the other states have shown the resolve to acknowledge the
complexities of the current sales and use tax collection system,
have worked with the business community to formulate a truly
simplified and streamlined collection system and have shown the
political will to enact the necessary changes to make the
streamlined collection system the law; and
Whereas, The Main Street Fairness Act will be introduced in
the 111th Congress to grant those states that comply with the
agreement the authority to require all sellers, regardless of
nexus, to collect those states' sales and use taxes; and
Whereas, Supporting the states' effort to comply with the
Streamlined Sales and Use Tax Agreement and the federal legislation granting states collection authority are such companies, unions and
organizations as: Alabama Retail Association; American Booksellers
Association; Arizona Retailers Association; Arkansas Grocers and
Retail Merchants Association; Best Buy, Inc; California Retailers
Association; Colorado Retail Council; Connecticut Retail Merchants
Association; Council of State Governments (CSG); Council of State
Retail Associations (CSRA); Council on State Taxation (COST);
Cracker Barrel Old Country Store, Inc.; CTIA-The Wireless
Association; Federation of Tax Administrators (FTA); First
Washington Reality, Inc.; Florida Retail Federation; General Growth
Properties, Inc.; Georgia Retail Association; Retail Merchants
Association of Hawaii; Home Depot; Idaho Retailers Association;
Illinois Retail Merchants Association; Independent Music Retailers
Association; Indiana Retail Council; International Council of
Shopping Centers (ICSC); International Union of Police; Iowa Retail
Federation; J. C. Penney Corporation, Inc.; Jack in the Box, Inc.;
Jewelers of America; Kansas Retail Council; Kentucky Retail
Association; Kimco Realty Corporation; K-Mart Corporation; Land's
End; Louisiana Retailers Association; Maine Merchants Association;
Maryland Retailers Association; Retailers Association of
Massachusetts (RAM); Michigan Retailers Association; Minnesota
Retailers Association; Retail Association of Mississippi; Missouri
Retailers Association; National Association of Chain Drug Stores;
National Association of College Stores; National Association of
Industrial and Office Properties (NAIOP); National Association of
Real Estate Investment Trusts (NAREIT); National Bicycles Dealers Association; National Conference of State Legislatures (NCSL);
National Education Association (NEA); National Governors
Association (NGA); National Office Products Association; National
Retail Federation (NRF); Nebraska Retail Federation; Retail
Federation of Nevada; New England Independent Booksellers
Association; New Jersey Retail Merchants Association; New Mexico
Retail Association; Retail Council of New York State; Newspaper
Association of America; North American Retail Dealers Association
(NARDA); North Carolina Retail Merchants Association; North Dakota
Retail Association; Northern California Independent Booksellers;
Ohio Council of Retail Merchants; Oklahoma Retail Council; Pacific
Northwest Booksellers Association; Pennsylvania Retailers'
Association; Performance Automotive Retailers; Performance
Warehouse Association; PETsMART, Inc.; Radio Shack Corporation;
Real Estate Roundtable; Retail Leaders Association (RILA); Rhode
Island Retail Federation; Ross Stores, Inc.; Sears Holdings
Corporation; Simon Property Group, Inc.; South Carolina Retail
Association; South Dakota Retailers Association; Staples, Inc.;
Target; Tennessee Retailers Association; The Gap, Inc.; The
Macerich Company; The TJX Companies, Inc; US Telecom; Utah Retail
Merchants Association; Vermont Retail Association; Virginia Retail
Merchants Association; Wal-Mart; Washington Retail Association;
Weingarten Realty Investors; West Acres Development LLP; Westfield;
Wisconsin Merchants Federation; and Wyoming Retail Merchants
Association; and
Whereas, Until Congress and the President enact the Main Street Fairness Act, participation by remote sellers is only
voluntary and thus states are unlikely to close the revenue gap
between what is owed on remote transactions and what is collected;
and
Whereas, Congressman Roy Blunt of Missouri has termed this
federal legislation as "fiscal relief for the states that does not
cost the federal government a single cent" and ensures the
viability of the sales and use tax as a state revenue source;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby urges the members of West
Virginia's congressional delegation to sponsor and support the Main
Street Fairness Act
; and, be it
Further Resolved, That the members of West Virginia's
congressional delegation join Senator Michael Enzi of Wyoming and
Congressman William Delahunt of Massachusetts
as cosponsors of the
Main Street Fairness Act and support its swift adoption by the
Congress of the United States; and, be it
Further Resolved, That President Barack Obama, upon its
passage by the Congress, is urged to sign the Main Street Fairness
Act into law; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the President of
the United States and the members of West Virginia's congressional
delegation.
Which, under the rules, lies over one day.
Senators Hall, K. Facemyer and Plymale offered the following
resolution:
Senate Concurrent Resolution No. 70--
Requesting the Division
of Highways name bridge number 40-35-0.04 located on U. S. Route 35
crossing I-64 in Scott Depot, Putnam County, the "Trooper William
'Bill' Phillips Memorial Bridge".
Whereas, William "Bill" Phillips was born on September 28,
1953, in Elkins, West Virginia, the son of Howard and Jeanette
Phillips; and
Whereas, William "Bill" Phillips subscribed to the ideals of
freedom and liberty and, prior to his career in the West Virginia
State Police, he served full time in the United States Air Force
for four years as a member of the Strategic Air Command here in the
United States, as well as in Turkey; and
Whereas, William "Bill" Phillips was sworn into the West
Virginia State Police Academy in January, 1979; and
Whereas, Upon graduation from the West Virginia State Police
Academy in June, 1979, Trooper William "Bill" Phillips was assigned
to the Winfield Detachment of the West Virginia State Police until
May, 1987, when he was transferred to the West Virginia State
Police Headquarters in South Charleston; and
Whereas, While upholding the law and keeping his neighbors
safe, Trooper William "Bill" Phillips tragically died while on duty
in a motor vehicle accident on U. S. Route 35 on July 30, 1987; and
Whereas, Although Trooper William "Bill" Phillips' work in
Putnam County only spanned eight years, his professionalism and dedication to his career left an indelible impression on many in
the county. His service was not on corporate boards, but directly
to friends and neighbors who may have needed snow plowed or help
with building a deck or an ear for listening; and
Whereas, Among his many activities in Putnam County, Trooper
William "Bill" Phillips was a member of the Putnam County EMS, the
West Virginia State Police SWAT and Dive Teams, and also raised
funds and participated in the Special Olympics Law-Enforcement
Torch Run; and
Whereas, Trooper William "Bill" Phillips was a dedicated
family man, married eleven years to Joan Antolini Phillips, M. D.,
and was the father to two beautiful daughters named Heather Lyons
and Laura Fullerton; and
Whereas, Many people in the Putnam County area held Trooper
William "Bill" Phillips in such high regard that at least three
boys have been named William in his memory; and
Whereas, Trooper William "Bill" Phillips was also an active
member of the Catholic Church of the Ascension where he belonged to
the Knights of Columbus; and
Whereas, The ultimate sacrifice of this brave and courageous
son of West Virginia requires us to honor Trooper William "Bill"
Phillips by ensuring that future generations are aware of his
sacrifice in the cause of law, order and freedom; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name
bridge number 40-35-0.04 located on U. S. Route 35 crossing I-64 in Scott Depot, Putnam County, the "Trooper William 'Bill' Phillips
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 "Trooper William 'Bill' Phillips 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 the family of Trooper William
"Bill" Phillips.
Which, under the rules, lies over one day.
Senators Oliverio, Plymale and Williams offered the following
resolution:
Senate Resolution No. 55--
Honoring Cody Gallagher on receiving
a 2009 Prudential Spirit Community Award for exemplary volunteer
service.
Whereas, Cody Gallagher, an esteemed resident of Fairmont,
West Virginia, and a student at Rivesville Middle School, has
achieved national recognition for exemplary volunteer service by
receiving a 2009 Prudential Spirit Community Award; and
Whereas, This prestigious award, presented by Prudential
Financial in partnership with the National Association of Secondary
School Principals, honors young volunteers across America who have
demonstrated an extraordinary commitment to serving their
communities; and
Whereas, Cody Gallagher earned his award by giving generously of his time and energy in a program he initiated called "Share a
Bear, Show Your Care"; and
Whereas, The success of the State of West Virginia, the
strength of our communities and the overall vitality of American
society depend, in great measure, upon the dedication of young
people like Cody Gallagher who use their considerable talents and
resources to serve others; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Cody Gallagher on receiving a
2009 Prudential Spirit of Community Award for exemplary volunteer
service; and, be it
Further Resolved, That the Senate hereby recognizes Cody
Gallagher's outstanding record of volunteer service, peer
leadership and community sprit and extends best wishes for his
continued success and happiness; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Cody Gallagher and the principal of
Rivesville Middle School.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, and by unanimous consent, returned
to the fourth order of business.
Senator Green, from the Committee on Energy, Industry and
Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under
consideration
Senate Concurrent Resolution No. 71 (originating in the
Committee on Energy, Industry and Mining)--
Recognizing the
importance of the oil and natural gas industry in West Virginia and
requesting West Virginia's congressional delegation to support the
oil and natural gas industry.
Whereas, The Legislature works tirelessly to improve the
quality of life for the citizens of the Mountain State; and
Whereas, Oil and Natural Gas Industry has been, and continues
to be, one of the primary industries responsible for the economic
success of West Virginia and its citizens; and
Whereas, Thousands of West Virginians are employed, either
directly or indirectly, by the oil and natural gas industry which
generates payrolls totaling over $1 billion; and
Whereas, Production, transmission, storage and distribution of
oil and natural gas currently accounts for the payment of millions
of dollars in severance taxes, millions of dollars in income taxes
and millions of dollars in other related taxes paid to the State of
West Virginia; and
Whereas, County governments and county school systems
throughout the state rely on the taxes from oil and natural gas
companies that annually fund many valuable programs, including
public education, ambulance services and law enforcement; and
Whereas, The reduction of West Virginia's oil and natural gas
production and the loss of any oil- and natural gas-related
employment ultimately results in significant harm to all West
Virginians; and
Whereas, The United States of America, in its effort to become
energy independent, may be compromised if oil and natural gas
investment is not maintained; and
Whereas, Concerns have been raised about President Obama's
proposal to eliminate a number of key tax incentives which have
benefitted the domestic natural gas industry; and
Whereas, Continued incentives will allow for development of
geophysical analysis necessary to evaluate known reserves such as
the Marcellus Shale and other shale formations vital for our
domestic reserves; and
Whereas, The continued development of domestic reserves is not
only good energy policy, it is sound fiscal policy and vital to our
national security; and
Whereas, Fewer wells in production would result in significant
direct West Virginia job losses and accompanying loss of property
and severance tax revenues; and
Whereas, The reduction in oil and natural gas development will
keep potential royalty payments to ordinary West Virginians who for
years have waited for and paid property taxes on minerals with the
hope they would be developed; and
Whereas, Actions by the United States Congress should be in an
effort to ensure our domestic energy resources are developed responsibly in conjunction with federal and state regulatory
agencies; and
Whereas, The United States Congress is responsible for
securing our national defense and providing for our energy
independence from foreign influence; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby recognizes the importance of the
oil and natural gas industry in West Virginia and requesting West
Virginia's congressional delegation to support the oil and natural
gas industry; and, be it
Further Resolved, That the Legislature hereby requests the
West Virginia congressional delegation join in opposition to
proposed changes in the United States Tax Code which reduce
incentives that stimulated domestic oil and natural gas production;
and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the President and
Vice President of the United States, Governor of West Virginia and
members of West Virginia's congressional delegation.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Mike Green,
Chair.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 72 (originating in the
Committee on Government Organization)--Requesting the Joint
Committee on Government Organization and Finance study hiring
practices within the West Virginia Division of Personnel regarding
hiring retired state employees for current positions.
Whereas, Rehiring retirees may create an unfair advantage in
regards to current state employees; and
Whereas, Retirees who are rehired by the State of West
Virginia may be allowed to use prior service and seniority, as well
as annual and sick leave days; and
Whereas, This use of prior service time may give an unfair
advantage to the retiree; and
Whereas, Further review and determination of best practices is
merited related to managing overall costs to the State of West
Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study hiring practices within the West Virginia
Division of Personnel regarding hiring retired state employees for
current positions; 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from the
Senate third reading calendar, Engrossed Committee Substitute for
House Bill No.
2530; and from the Senate second reading calendar,
Engrossed Committee Substitute for House Bill No. 3146 and
Engrossed House Bill No.
3295
.
Senator Chafin also announced that in the same meeting, the
Committee on Rules had returned to the Senate calendar, on second
reading, Engrossed Committee Substitute for House Bill No. 2418,
Engrossed Committee Substitute for House Bill No. 2419, Engrossed
Committee Substitute for House Bill No. 2719, Engrossed Committee
Substitute for House Bill No. 2737, Engrossed House Bill No. 2801,
Engrossed Committee Substitute for House Bill No. 2999, Engrossed
Committee Substitute for House Bill No. 3017 and Engrossed
Committee Substitute for House Bill No. 3275, under rule number seventeen of the Rules of the Senate.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2170, Authorizing the
Department of Commerce to promulgate legislative rules.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2170) passed.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2170--A Bill
to amend and
reenact article 10, chapter 64 of the code of West Virginia, 1931,
as amended, relating generally to the promulgation of
administrative rules by the Department of Commerce; legislative
mandate or authorization for the promulgation of certain
legislative rules by various executive or administrative agencies
of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in
the State Register; authorizing certain of the agencies to
promulgate certain legislative rules with various modifications
presented to and recommended by the Legislative Rule-Making Review
Committee; authorizing certain of the agencies to promulgate
certain legislative rules as amended by the Legislature;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the Legislative Rule-Making Review Committee and as
amended by the Legislature; repealing certain legislative rules;
authorizing the Development Office to promulgate a legislative rule
relating to brownfield economic development districts
;
authorizing
the Division of Labor to repeal a legislative rule relating to
packaging and labeling
;
authorizing the Division of Labor to repeal
a legislative rule relating to a method of sale of commodities
;
authorizing the Division of Labor to promulgate a legislative rule
relating to the West Virginia Manufactured Housing Construction and
Safety Standards Board
;
authorizing the Division of Labor to
promulgate a legislative rule relating to weights and measures
calibration fees
;
authorizing the Division of Labor to promulgate
a legislative rule relating to standards for weights and measures
inspectors adoption of National Conference of Weights and Measures
(NCWM) Handbook 130, 1987 edition
;
authorizing the Division of
Labor to promulgate a legislative rule relating to the Amusement
Rides and Attractions Safety Act
; authorizing the Division of Labor
to promulgate a legislative rule relating to the Elevator Safety Act
;
authorizing the Division of Labor to promulgate a legislative
rule relating to the
supervision of elevator mechanics and
apprentices
;
authorizing the Division of Natural Resources to
promulgate a legislative rule relating to boating
; authorizing the
Division of Natural Resources to promulgate a legislative rule
relating to deer hunting
; authorizing the Division of Natural
Resources to promulgate a legislative rule relating to lifetime
hunting, trapping and fishing licenses
; authorizing the Division of
Natural Resources to promulgate a legislative rule relating to
hunting, trapping and fishing license and stamp fees
; authorizing
the Division of Tourism to promulgate a legislative rule relating
to the direct advertising grants program
.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2170) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2464, Authorizing county
commissions to designate locations for early voting other than the
county courthouse or annex.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2464) 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 House Bill No. 2530, Relating to further
defining professional student support personnel.
Having been removed from the Senate third reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 2541, Including poultry among those
domesticated farm animals or stock which the owner shall be liable
for damages caused by those animals.
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: Boley, Bowman,
Browning, Caruth, Chafin, 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)--32.
The nays were: Barnes and Deem--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2541) 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 House Bill No. 2557, Relating to the
enforcement of new motor vehicle warranties.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2557) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2557--A Bill
to amend and
reenact §46A-6A-2, §46A-6A-3 and §46A-6A-3a of the Code of West
Virginia, 1931, as amended, all relating to repairing or replacing
a new motor vehicle under a new motor vehicle warranty; providing
a definition of "motor vehicle"; making the provisions related to
the enforcement of new motor vehicle warranties applicable to
vehicles registered and titled in this state, regardless of where
the vehicle was purchased; setting forth the liability of an
authorized dealer as to new motor vehicle warranties; and
disclosing to a consumer in writing as to any repairs made by an
authorized dealer to a new motor vehicle
.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2767, Changing the
membership of the PEIA Financial Board.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2767) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2767) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2836, School Innovation
Zones Act.
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, Chafin, 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, Williams, Yost
and Tomblin (Mr. President)--33.
The nays were: White--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2836) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2836--A Bill
to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §18-5B-1, §18-5B-2, §18-5B-3, §18-5B-4, §18-5B-
5, §18-5B-6, §18-5B-7, §18-5B-8 and §18-5B-9, all relating to
school innovation zones; setting forth legislative findings, intent
and purpose; authorizing state board to designate school innovation
zones; establishing processes for application and plan review and
approval and amendment; providing process for grant of exceptions
to state board and county policies, rules and interpretations, and
statutes, and prohibiting certain exceptions; providing for
revocation of designation and plan approval; requiring annual
report by the state board; providing for the voluntary transfer of
employees; providing for teacher job postings that exceed certain
qualifications and requirements; authorizing the board of education to promulgate rules and emergency rules; and authorizing state
institutions of higher education to establish new innovation zone
schools.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, 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, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: White--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2836) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2863, Relating to
construction of state utility projects.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2863) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2863--A Bill
to amend and
reenact §5G-1-3 of the Code of West Virginia, 1931, as amended; to
amend and reenact §22C-1-5 of said code; to amend and reenact
§24-2-11 of said code; and to amend and reenact §31-15A-3 and
§31-15A-6 of said code, all relating to construction of state
utility projects; putting limitations on engineering design and
construction inspection fees for state and state subdivision
sponsored utility construction; requiring all Water Development
Authority sponsored utility projects to get authorization prior to
removal of proposed customers of a project; requiring the
governmental agency administering the utility project to perform an
annual maintenance audit of the utility; altering the number of
customers or proposed customers protesting requiring a formal
hearing; reducing time periods for the Public Service Commission to
review and approve certain applications by public utilities for
certificate of public convenience and necessity; and providing for
additional members of the West Virginia Infrastructure and Jobs
Development Council.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2863) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2920, Eliminating the felony conviction
for a second or subsequent conviction of petit larceny.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's third reading calendar.
Eng. Com. Sub. for House Bill No. 2968, Requiring the State
Fire Commission to establish safety standards for liquefied
petroleum gas systems.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2968) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2968--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto two new
sections, designated §29-3-5c and §29-3-16, all relating to
requiring the State Fire Commission to establish safety standards
for liquefied petroleum gas systems; and requiring the
installation, maintenance or service of fuel gas systems in one or
two family dwellings according to the State Fire Code and the rules
promulgated thereunder, if such installation is performed by any
person other than the owner or occupant of a single-family
dwelling.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2968) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2981, Relating to primary elections and
nominating procedures of third-party candidates.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar.
Eng. Com. Sub. for House Bill No. 3120, Increasing the WV
Prosecuting Attorneys Institute's executive council's elected
members from five to seven and permitting the appointment of
special prosecutors in juvenile delinquency, child abuse or neglect
proceedings.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Kessler, unanimous consent was granted to offer amendments to the bill on third reading.
Thereupon, on motion of Senator Kessler, the following
amendments to the bill were reported by the Clerk, considered
simultaneously, and adopted:
On page three, section six, line thirty-two, by striking out
the word "or";
On page three, section six, line thirty-three, after the word
"code" by inserting a comma and the words "or in any matter wherein
a special prosecutor previously appointed has failed to take any
action thereon within such time as the Executive Director deems
unreasonable, not to exceed three terms of court from the date on
which the special prosecutor was appointed: Provided, That such
replacement or original appointment may be any attorney with a
license in good standing in this state";
On page six, section six, line seventy-six, by striking out
the word "or";
And,
On page six, section six, line seventy-seven, after the word
"code" by inserting a comma and the words "or in any matter wherein
a special prosecutor previously appointed has failed to take any
action thereon within such time as the Executive Director deems
unreasonable, not to exceed three terms of court from the date on
which the special prosecutor was appointed: Provided, That such
replacement or original appointment may be any attorney with a
license in good standing in this state".
The bill, as just amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3120) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3120) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3120--A Bill to repeal §7-4-
6a of the Code of West Virginia, 1931, as amended; and to amend and
reenact §7-4-6, relating to increasing the West Virginia
Prosecuting Attorneys Institute executive council to seven members;
permitting the appointment of special prosecutors in matters of
juvenile delinquency and child abuse and neglect; and repealing
outdated section that continued the Prosecuting Attorneys
Institute.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3134, Municipal vote by mail pilot program.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3134) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub for House Bill No. 3134--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §3-3A-1, §3-3A-2, §3-3A-3, §3-3A-4 and §3-3A-5,
all relating to a voting by mail; creating a two phase vote by mail
pilot program for municipalities; allowing class IV municipalities
to conduct early voting in municipal elections by mail; requiring
adoption of an ordinance; requiring the Secretary of State select
five municipalities for a pilot project; allowing selected
municipalities conduct municipal elections by mail; requiring
emergency and legislative rules; setting forth criteria; granting authority to conduct voting by mail; and providing for termination
of phase two of the pilot project.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3288, Relating to mental
health parity.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3288) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 3288--A Bill to amend and
reenact §5-16-7 of the Code of West Virginia, 1931, as amended; and
to amend and reenact §33-16-3a of said code, all relating to group
accident and sickness insurance requirements to cover treatment of mental illness; providing that actual increases in costs for
certain coverage determine whether cost containment measures may be
applied by Public Employees Insurance Agency and private carriers;
and removing certain provisions regarding small groups.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3305, Relating to the powers
and duties of probation officers.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3305) 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 House Bill No. 3313, Allowing depositories
and banks to meet the security requirement necessary to be a
depository for boards of education by providing a letter of credit from a federal home loan bank.
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, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3313) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The end of today's third reading calendar having been reached,
the Senate returned to the consideration of
Eng. House Bill No. 2920, Eliminating the felony conviction
for a second or subsequent conviction of petit larceny.
On third reading, coming up in deferred order, was again
reported by the Clerk.
At the request of Senator Jenkins, unanimous consent was
granted to offer amendments to the bill on third reading.
Thereupon, on motions of Senators Jenkins and Plymale, the
following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
On page one, after section one, by adding the provisions of
Engrossed Committee Substitute for Senate Bill No. 650;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §61-11-20 of the Code of West Virginia, 1931, as amended,
be repealed; and that §61-11-6 of said code be amended and
reenacted, all to read as follows:.
The bill, as just amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 2920) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, 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: D. Facemire--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2920) passed.
On motions of Senators Jenkins and Plymale, the following
amendment to the title of the bill was reported by the Clerk and
adopted:
Eng. House Bill No. 2920--A Bill to repeal §61-11-20 of the
Code of West Virginia, 1931, as amended; and to amend and reenact
§61-11-6 of said code, all relating to crimes and their punishment;
eliminating the felony offense of second or subsequent petit
larceny; and increasing the penalty for accessory after the fact to
certain crimes; establishing penalties; and creating exceptions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 5:30
p.m. today.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Kessler, and by unanimous consent, returned
to the sixth order of business, which agenda includes the making of
main motions.
On motion of Senator Kessler, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 3305, Relating to the powers
and duties of probation officers.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered the vote
as to the passage of the bill.
The vote thereon being reconsidered,
At the request of Senator Kessler, unanimous consent was granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Kessler, the following
amendment to the bill was reported by the Clerk and adopted:
O
n page three, section six, lines thirty-four and thirty-five,
by striking out the words "for proceedings pursuant to section
twenty-six of this article".
The bill, as just amended, was again ordered to third reading.
Engrossed Committee Substitute for House Bill No. 3305 was
then read a third time and put upon its passage.
Om the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of those present and voting having voted in the
affirmative, the President declared the bill (Eng. Com. Sub. for H.
B. No. 3305) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from the
Senate second reading calendar, Engrossed House Bill No. 3192.
Senator Chafin also announced that in the same meeting, the
Committee on Rules had returned to the Senate calendar, on second
reading, Engrossed Committee Substitute for House Bill No. 2567,
Engrossed Committee Substitute for House Bill No. 2869, Engrossed
Committee Substitute for House Bill No. 3146 and Engrossed House
Bill No.
3295, under rule number seventeen of the Rules of the
Senate.
The Senate proceeded to the ninth order of business.
Senate Bill No. 771, Making supplemental appropriation of
federal funds to various accounts.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Senate Bill No. 772, Making supplemental appropriation to
various accounts.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Senate Bill No. 773, Making supplemental appropriation to
Department of Agriculture, Land Protection Authority.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Eng. House Bill No. 2050, Expanding the counties covered by
West Virginia Route 2 and Interstate 68 Authority to include
Cabell, Mason and Jackson counties; and increasing the number of
members.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Kessler, and by unanimous consent,
the bill was advanced to third reading with the right for
amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2360, Insuring that tobacco
products are not sold in any packaging other than the original.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Health and Human Resources, were reported by the Clerk, considered
simultaneously, and adopted:
On page two, section ten, line two, by striking out the words
"or distribution";
On page two, section ten, line five, by striking out the words
"or distribution";
And,
On page two, section, ten, line ten, by striking out the words
"or distribution".
The bill (Eng. Com. Sub. for H. B. No. 2360), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2360) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, K. Facemyer, Fanning,
Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--31.
The nays were: Barnes, D. Facemire and Hall--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2360) 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 House Bill No. 2418, Relating to exempting
certain records of the Division of Corrections and Regional Jail
Authority from the Freedom of Information Act that, if released,
could aid inmates in committing unlawful acts.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2419, Providing inmates a reduction in sentence for completion of education and
rehabilitation programs.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2421, Requires that
inoperable fire hydrants be painted black and be reported to
emergency dispatch centers.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
On page two, by striking out everything after the article
heading and inserting in lieu thereof the following:
§8-19-22. Identification requirement for fire hydrants that are
inoperable or unavailable for use in emergency situations.
(a) The owner or operator of a fire hydrant or any device
having the appearance of a fire hydrant that is located in a place
that an entity responsible for providing fire suppression services
in a fire emergency would expect a fire hydrant to typically be
located, shall mark the fire hydrant or device, as set out in
subsection (b) of this section, if the owner or operator has actual
knowledge that the fire hydrant or device is inoperable or is
unavailable for use by an entity providing fire suppression
services in a fire emergency.
(b) To mark the fire hydrant or device, the owner or operator
of the fire hydrant or device shall:
(1) Paint the fire hydrant or device black if the fire hydrant
or device is inoperable or unavailable for use; or
(2) Place a black tarp over the fire hydrant or device if the
device is temporarily inoperable or temporarily unavailable for use
in a fire emergency, for a period not to exceed fourteen days.
(c) For the purposes of this section, the word "inoperable"
means a fire hydrant that does not produce water flow when
activated.
The bill (Eng. Com. Sub. for H. B. No. 2421), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2421) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2421) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 2421--A Bill to amend the
code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §8-19-22, relating to fire hydrants; requiring
the marking of an inoperable fire hydrant; setting requirements for
the marking; and defining inoperable.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2423, Relating to the Board
of Medical Imaging and Radiation Therapy Technology.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2504, Establishing the
Silver Alert Plan, an alert system for missing cognitively impaired
persons.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on
the Judiciary, were reported by the Clerk, considered
simultaneously, and adopted:
On page seven, section four, line eight, after the word
"Police" by inserting the words "or other appropriate law-
enforcement agency";
And,
On page seven, section four, line eleven, after the word
"domiciled" by inserting the words "or believed to be located".
The bill (Eng. Com. Sub. for H. B. No. 2504), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2504) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2504) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2504--A Bill to amend and
reenact §15-3A-7 of the Code of West Virginia, 1931, as amended;
and by further amending said code by adding thereto a new article,
designated §15-3B-1, §15-3B-2, §15-3B-3, §15-3B-4, §15-3B-5 and
§15-3B-6 of said code, all relating to the establishment of an
alert system for missing cognitively impaired persons; providing
for the use of video image recording devices for search purposes
during a Silver Alert; providing legislative findings; providing
criteria for the activation of a Silver Alert; providing for notice
and broadcasting of a Silver Alert; and providing immunity for
individuals providing information pursuant to a Silver Alert in
good faith.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2536, Adding language that includes
railcars and locomotives in the category of railroad property that
is illegal to interfere or tamper with.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §61-3-28 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-28. Offenses against railroad property and persons on
railroad property; definitions.
(a) As used in this section:
(1) "Bodily injury" means substantial physical pain, illness
or any impairment of physical injury.
(2) "Railroad" means any form of nonhighway ground
transportation that runs on rails or electromagnetic guideways,
including:
(i) Commuter or other short-haul railroad passenger service in
a metropolitan or suburban area; and
(ii) High-speed ground transportation systems that connect
metropolitan areas but does not include rapid transit operations in
an urban area that are not connected to the general railroad system
of transportation;
(3) "Railroad carrier" means a person providing railroad
transportation; railroad carrier including a right-of-way, track,
bridge, yard, shop, station, tunnel, viaduct, trestle, depot,
warehouse, terminal, railroad signal system, train control system,
centralized dispatching system, or any other structure,
appurtenance, or equipment owned, leased, or used in the operation
of any railroad carrier including a train, locomotive, engine,
railroad car, work equipment, rolling stock, or safety device.
"Railroad property" does not include administrative buildings,
administrative offices, or administrative office equipment;
(4) "Right-of-way" means the track or roadbed owned, leased,
or operated by a railroad carrier which is located on either side
of its tracks and which is readily recognizable to a reasonable
person as being railroad property or is reasonably identified as
such by fencing or appropriate signs;
(5) "Yard" means a system of parallel tracks, crossovers, and
switches where railroad cars are switched and made up into trains,
and where railroad cars, locomotives and other rolling stock are
kept when not in use or when awaiting repairs.
(b) Whoever willfully damages or attempts to damage railroad
property or willfully endangers or attempts to endanger the safety
of another, by:
(1) Taking, removing, altering, or otherwise vandalizing a
railroad sign, placard or marker;
(2) Throwing or dropping an object capable of causing
significant damage to railroad property at or on a locomotive, railroad car or train;
(3) Shooting a firearm or other dangerous weapon at a
locomotive, railroad car or train;
(4) Removing appurtenances from, damaging, or otherwise
impairing the operation of any railroad signal system, including a
train control system, centralized dispatching system, or
highway-railroad grade crossing warning signal, on a railroad
owned, leased, or operated by any railroad carrier, and without
consent of the railroad carrier involved;
(5) Interfering or tampering with, or obstructing in any way,
or threatening to interfere with, tamper with or obstruct in any
way any railcar or locomotive, switch, frog, rail, roadbed,
sleeper, viaduct, bridge, trestle, culvert, embankment, structure,
or appliance pertaining to or connected with any railroad carrier
without consent of the railroad carrier involved; or
(6) Taking, stealing, removing, changing, adding to, altering,
or in any manner interfering with any part of the operating
mechanism of any locomotive, engine, tender, coach, car, caboose,
or motor car used or capable of being used by any railroad carrier
in this state without consent of the railroad carrier is guilty of
a felony.
If railroad property damage does not exceed $1,000 and no
bodily injury occurs to another as a result of any of the aforesaid
acts, upon conviction thereof, the person shall be fined not less
than $500 nor more than $5,000, confined in a regional jail for not
more than one year, or both. If bodily injury occurs to another not acting with or in connection with the perpetrator as a result
of any of the aforesaid acts or if railroad property damage exceeds
$1,000, upon conviction thereof, the person shall be fined not less
$1,000 nor more than $10,000, committed to the custody of the
Commission of Corrections for not less than one nor more than ten
years, or both.
(d) The provisions of this section do not apply to any person
employed by a railroad who is performing the duties assigned by the
railroad or who is otherwise performing within the scope of his or
her employment.
The bill (Eng. H. B. No. 2536), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2536) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2536) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 2536--A Bill to amend and reenact §61-3-28
of the Code of West Virginia, 1931, as amended, relating to
offenses against railroad property, generally; adding language that
includes railcars and locomotives in the category of railroad
property that is illegal to interfere with, tamper with or
obstruct, or to threaten to interfere with, to tamper with or
obstruct; and establishing a minimum fine for violations.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2539, Authorizing professional licensing
boards to combine administrative staff functions.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §30-1-19, to read as
follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO STATE BOARDS.
§30-1-19. Combining board staff functions.
(a) Any board referred to in this chapter may combine
administrative staff functions with any other board or boards
referred to in this chapter, pursuant to the provisions of
subsection (b) of this section, to carry out the administrative
duties of the boards as set forth in this article, the practice
acts of each board set forth in this chapter and the legislative
rules of each board: Provided, That each board retains
responsibility for fulfilling its statutory duties.
(b) Before combining administrative staff functions pursuant
to subsection (a) of this section, the boards shall, in
consultation with the office of the Attorney General, enter into a
memorandum of understanding with the following provisions:
(1) The names of the boards combining administrative staff
functions;
(2) The administrative staff functions being combined,
including the staffs' titles and duties relative to each board;
(3) The prorata share of expenses that each board will be
responsible for paying, including salaries, office rent, office supplies, telephone, fax and computer services, travel expenses and
any other expenses anticipated by the boards;
(4) A description of how decisions will be made by the boards,
including employment of staff, the staff's functions and duties,
and any other necessary decisions;
(5) A description of how modifications may be made to the
terms of the agreement; and
(6) Any other provisions necessary to set forth the agreement
of the boards.
(c) The boards that combine administrative staff functions
pursuant to this section, may promulgate rules in accordance with
the provisions of chapter twenty-nine-a of this code, to make any
necessary changes to facilitate the combining of administrative
staff functions. The boards may also promulgate emergency rules
pursuant to the provisions of section fifteen, article three,
chapter twenty-nine-a of this code, to correct any conflicts with
a board's current rules.
The bill (Eng. H. B. No. 2539), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2539) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2539) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. House Bill No. 2539--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §30-1-19, relating to professional licensing boards;
authorizing the combining of administrative staff functions of
boards; requiring consultation with the office of the Attorney
General; requiring memorandum of understanding; and authorizing emergency rules and rulemaking.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2567, Relating to filing
agency rules with the Secretary of State under the Administrative
Procedures Act.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2621, Prohibiting the use of
cell phone and text-messaging devices while operating a motor
vehicle except when using a hands-free device or in the case of an
emergency.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding a new section, designated §17C-14-15; and that §17C-15-49
of said code be amended and reenacted, all to read as follows:
ARTICLE 14. MISCELLANEOUS RULES.
§17C-14-15. Unlawful use of wireless communication devices while
operating a motor vehicle; exceptions; penalty.
(a) The use of a wireless electronic communication device by
an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the wireless communication device is
a hands-free wireless electronic communication device being used
hands-free, provided that its placement does not interfere with the
operation of federally required safety equipment and the operator
exercises a high degree of caution in the operation of the motor
vehicle.
(b) The provisions of this section do not apply to a driver
who uses a wireless communication device when:
(1) The driver immediately fears for his, her, or another
person's life or safety, or the driver believes that he, she, or
another person is, or is about to become, the victim of a criminal
act;
(2) The driver uses the wireless communication device to
contact law-enforcement authorities, emergency personnel for the
purpose of reporting criminal activity, a fire, a traffic accident,
a serious road hazard, a medical emergency, a hazardous materials
emergency or any other condition which threatens bodily injury,
public health, welfare or safety; or
(3) Emergency services personnel while responding to an
emergency situation, may use a wireless communication device while
operating an authorized emergency vehicle, as defined in section
six, article one, of this chapter, in the course and scope of his
or her duties.
(c) As used in this section:
(1) "Hands-free wireless communication device" means a
wireless communication device equipped with an internal feature or function, or an attachment or addition, whether or not permanently
part of the device, by which a user engages in a conversation,
sends or receives a message, interchanges information, or otherwise
communicates without the use of either hand: Provided, That this
definition does not preclude the use of either hand to activate,
deactivate or initiate a function of the device;
(2) "Use a wireless communication device" means to verbally or
visually converse, message, or otherwise interchange information,
including utilization of the internet on a wireless communication
device, whether by audio or video communication, telephone, text
messaging, or any other form of electronic communication; and
(3) "Wireless communication device" means a cellular, analog,
wireless or digital device, computer or telephone, capable of
accessing, sending or receiving wireless electronic messages,
conversation or other interchange of information, including, but
not limited to, a wireless telephone service, a wireless internet
service or a wireless text messaging service. A "wireless
communication device" does not include:
(A) voice radios, mobile radios, land mobile radios,
commercial mobile radios or two-way radios with the capability to
transmit and receive voice transmissions utilizing a "push to talk"
or "press to transmit" function; or
(B) other voice radios used by a law-enforcement officer, an
emergency services provider, an employee or agent of public safety
organizations, first responders, Amateur Radio Operators(HAM)
licensed by the Federal Communications Commission, and school bus operators.
(d) Any person who violates the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $25. No court costs or other fees shall be
assessed for a violation of this section.
(e) Enforcement of this section shall be accomplished only as
a secondary action when a driver has been detained for probable
cause of violating another section of this code or a municipal
ordinance.
(f) Notwithstanding any other provision of this code to the
contrary, no points may be entered on any driver's record
maintained by the Division of Motor Vehicles as a result of a
violation of this section.
ARTICLE 15. EQUIPMENT.
§17C-15-49. Operation of vehicles with safety belts; exception;
penalty; civil actions; educational program by West Virginia
State Police.
(a) Effective September 1, one thousand nine hundred
ninety-three 2009, a person may not operate a passenger vehicle on
a public street or highway of this state unless the person, any
passenger in the back seat under eighteen years of age and any
passenger in the front seat of such the passenger vehicle is
restrained by a safety belt meeting applicable federal motor
vehicle safety standards. For the purposes of this section, the
term "passenger vehicle" means a motor vehicle which is designed
for transporting ten passengers or less, including the driver, except that such the term does not include a motorcycle, a trailer
or any motor vehicle which is not required on the date of the
enactment of this section under a federal motor vehicle safety
standard to be equipped with a belt system. The provisions of this
section shall apply to all passenger vehicles manufactured after
January 1, 1967, and being 1968 models and newer.
(b) The required use of safety belts as provided herein in
this section does not apply to a duly appointed or contracted rural
mail carrier of the United States Postal Service who is actually
making mail deliveries or to a passenger or operator with a
physically disabling condition whose physical disability would
prevent appropriate restraint in such the safety belt if the
condition is duly certified by a physician who shall state states
the nature of the disability as well as the reason such the
restraint is inappropriate. The Division of Motor Vehicles shall
adopt propose rules for legislative approval, in accordance with
the provisions of chapter twenty-nine-a of this code, to establish
a method to certify the physical disability and to require use of
an alternative restraint system where feasible or to waive the
requirement for the use of any restraint system.
(c) Any person who violates the provisions of this section
shall be fined not more than twenty-five $15. No court costs or
other fees shall may be assessed for a violation of this section.
Enforcement of this section shall be accomplished only as a
secondary action when a driver of a passenger vehicle has been
detained for probable cause of violating another section of this code.
(d) A violation of this section is not admissible as evidence
of negligence or contributory negligence or comparative negligence
in any civil action or proceeding for damages and shall is not be
admissible in mitigation of damages: Provided, That the court may,
upon motion of the defendant, conduct an in camera hearing to
determine whether an injured party's failure to wear a safety belt
was a proximate cause of the injuries complained of. Upon such a
finding by the court, the court may then, in a jury trial, by
special interrogatory to the jury, determine: (1) That the injured
party failed to wear a safety belt; and (2) that the failure to
wear the safety belt constituted a failure to mitigate damages.
The trier of fact may reduce the injured party's recovery for
medical damages by an amount not to exceed five percent thereof of
the medical damages. In the event the plaintiff stipulates to the
reduction of five percent of medical damages, the court shall make
the calculations and the issue of mitigation of damages for failure
to wear a safety belt shall may not be presented to the jury. In
all cases, the actual computation of the dollar amount reduction
shall be determined by the court.
(e) Notwithstanding any other provision of this code to the
contrary, no points may be entered on any driver's record
maintained by the Division of Motor Vehicles as a result of a
violation of this section.
(f) Commencing the first day of July, one thousand nine
hundred ninety-three The Governor's Highway Safety Program, in cooperation with the division of public safety West Virginia State
Police and any other state departments or agencies and with county
and municipal law-enforcement agencies, shall initiate and conduct
an educational program designed to encourage compliance with safety
belt usage laws. This program shall be focused on the
effectiveness of safety belts, the monetary savings and the other
benefits to the public from usage of safety belts and the
requirements and penalties specified in this law.
(g) Nothing contained in this section shall be construed to
abrogate or alter abrogates or alters the provisions of section
forty-six of this article relating to the mandatory use of child
passenger safety devices.
On motion of Senator Palumbo, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 2621) was reported by the Clerk and adopted:
On page four, section forty-nine, subsection (a), by striking
out "September 1" and inserting in lieu thereof "June 30".
On motion of Senator Browning, the following amendments to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 2621) were next reported by the Clerk and considered
simultaneously:
On page seven, after section forty-nine, by adding the
provisions of Engrossed Committee Substitute for Senate Bill No.
298;
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §17C-14-15; that §17C-
15-49 of said code be amended and reenacted; and that §24-6-6b of
said code be amended and reenacted, all to read as follows:.
Senator Unger arose to a point of order that the amendments
offered by Senator Browning to the Judiciary committee amendment to
the bill (Eng. Com. Sub. for H. B. No. 2621) were not germane.
Which point of order, the President ruled not well taken.
The question being on the adoption of Senator Browning's
amendments to the Judiciary committee amendment to the bill, the
same was put and prevailed.
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended.
Senator Unger arose to a point of order that the Judiciary
committee amendment to the bill, as amended, was not germane to the
bill.
Which point of order, the President ruled well taken.
On motion of Senator Browning, the following amendments to the
bill (Eng. Com. Sub. for H. B. No. 2621) were next reported by the
Clerk, considered simultaneously, and adopted:
On page six, after section fifteen, by adding the provisions
of Engrossed Committee Substitute for Senate Bill No. 298;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §17C-14-15; and that
§24-6-6b of said code be amended and reenacted, all to read as
follows:.
The bill (Eng. Com. Sub. for H. B. No. 2621), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost
and Tomblin (Mr. President)--32.
The nays were: Barnes and Sypolt--2.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2621) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: D. Facemire and Sypolt--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2621) passed.
On motion of Senator Browning, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2621--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §17C-14-15; and to amend and reenact §24-6-6b
of said code, all relating to wireless cell phone use and wireless
cell phone tower funding, establishing the offense of unlawful use
of a wireless communication device while operating a motor vehicle
on a street or highway; providing exceptions and conditions for
certain lawful uses; definitions; misdemeanor criminal penalties;
limitation of enforcement; increasing the amount allocated from the
wireless enhanced 911 fee to be deposited into the Enhanced 911
Wireless Tower Access Assistance Fund and distributed by the Public
Service Commission to subsidize the construction of Wireless
towers; and providing definitions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2694, Establishing certain
requirements for modification of custodial rights for parent's or
guardian's that have been deployed to the United States Armed
Forces.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on
Military, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §48-1-233.3 and §48-
1-233.4; that said code be amended by adding thereto a new section,
designated §48-9-404; that §48-11-106 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
section, designated §48-11-108, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
PART 2--DEFINITIONS.
§48-1-233.3. Military parent defined.
"Military parent" means a natural parent or adoptive parent of
a child under the age of eighteen whose parental rights have not
been terminated by a court of competent jurisdiction.
§48-1-233.4. Military service or service defined.
(a) In the case of a parent who is a member of the Army, Navy,
Air Force, Marine Corps, Coast Guard, or a Reserve component of
these services, "military service or service" means a deployment
for combat operations, a contingency operation, or a natural
disaster based on orders that do not permit a family member to
accompany the member on the deployment.
(b) In the case of a parent who is a member of the National Guard, "military service or service" means service under a call to
active service authorized by the President of the United States or
the Secretary of Defense for a period of more than thirty
consecutive days pursuant to 32 U.S.C. 502(f) for purposes of
responding to a national emergency declared by the President and
supported by federal funds.
(c) "Military service or service" includes a period during
which a military parent remains subject to deployment orders and
remains deployed on account of sickness, wounds, leave or other
lawful cause.
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND
DECISION-MAKING RESPONSIBILITY OF CHILDREN.
PART 4. MODIFICATION OF PARENTING PLAN.
§48-9-404. Modification of a parenting plan due to military
service.
(a) If a military parent is required to be separated from a
child due to military service, a court shall not enter a final
order modifying the terms of an existing parenting plan until
ninety days after the military parent is released from military
service. A military parent's absence or relocation because of
military service must not be the sole factor supporting a change in
circumstance or grounds sufficient to support a permanent
modification of an existing parenting plan.
(b) A parenting plan establishing the terms of custody or
visitation in place at the time a military parent is called to
military service may be temporarily modified to make reasonable accommodation for the parties because of the military parent's
service.
(c) A temporary parenting plan pursuant to this section must
provide that the military parent has custodial responsibility of
the child during a period of leave granted to the military parent
during their military service. If a temporary parenting plan is not
issued pursuant to this section, the nonmilitary custodial parent
shall make the child or children reasonably available to the
military parent when the military parent has leave to ensure that
the military parent has reasonable custodial responsibility and is
able to exercise custodial responsibility of the child or children.
(d) If there is no existing parenting plan or order
establishing the terms of custody or visitation and it appears that
military service is imminent, upon motion by either parent, the
court shall expedite a temporary hearing to establish a temporary
parenting plan to ensure the military parent has access to the
child, to establish support, and provide other appropriate relief.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-106. Expedited process for modification.
(a) An expedited process for modification of a child support
order may be utilized if:
(1) Either parent experiences a substantial change of
circumstances resulting in a decrease in income due to loss of
employment or other involuntary cause;
(2) An increase in income due to promotion, change in
employment or reemployment;
or
(3) Other such change in employment status
; or
(4) If a military parent is called to military service.
(b) The party seeking the recalculation of support and
modification of the support order shall file a description of the
decrease or increase in income and an explanation of the cause of
the decrease or increase on a standardized form to be provided by
the secretary-clerk or other employee of the family court. The
standardized form shall be verified by the filing party. Any
available documentary evidence shall be filed with the standardized
form. Based upon the filing and information available in the case
record, the amount of support shall be tentatively recalculated.
(c) The secretary-clerk shall serve a notice of the filing, a
copy of the standardized form and the support calculations upon the
other party by certified mail, return receipt requested, with
delivery restricted to the addressee, in accordance with rule
4(d)(1)(D) of the West Virginia rules of civil procedure. The
secretary-clerk shall also mail a copy, by first-class mail, to the
local office of the bureau for child support enforcement for the
county in which the family court is located in the same manner as
original process under rule 4(d) of the rules of civil procedure.
(d) The notice shall fix a date fourteen days from the date of
mailing and inform the party that unless the recalculation is
contested and a hearing request is made on or before the date
fixed, the proposed modification will be made effective. If the
filing is contested, the proposed modification shall be set for
hearing; otherwise, the court shall enter an order for a judgment by default. Either party may move to set aside a judgment by
default, pursuant to the provisions of rule 55 or rule 60(b) of the
rules of civil procedure.
(e) If an obligor uses the provisions of this section to
expeditiously reduce his or her child support obligation, the order
that effected the reduction shall also require the obligor to
notify the obligee of reemployment, new employment or other such
change in employment status that results in an increase in income.
If an obligee uses the provisions of this section to expeditiously
increase his or her child support obligation, the order that
effected the increase shall also require the obligee to notify the
obligor of reemployment, new employment or other such change in
employment status that results in an increase in income of the
obligee.
(f) The supreme court of appeals shall develop the
standardized form required by this section.
§48-11-108. Modification of support based on military service.
(a) If a military parent is called to military service, either
parent may file a notice of activation of military service and a
request for an expedited modification of a support order pursuant
to section one hundred six of this article. In the petition, the
parent must cite the basis for modifying the support order and the
military parent's change in financial circumstances supporting the
petition.
(b) The court shall temporarily modify the amount of child
support for the duration of the military parent's military service pursuant to the provisions of section fifteen of this article if
there is a substantial change in circumstances based upon changes
in income and earning capacity of the military parent during
military service. An increase or decrease in income or earning
capacity of a military parent due to military service may only be
used to calculate support during the period of military service and
must not be considered a permanent increase or decrease in income
or earning capacity. The effective date for a temporary
modification must be the date the military parent begins military
service.
(c) Upon return from military service, the military parent's
child support obligation prior to a temporary modification is
automatically reinstated, effective on the date the military parent
is released from service. Within ninety days of the military
parent's release from service, either parent may make a request for
a modification of child support to correspond to a change in the
military parent's nonservice related income or earning capacity.
A modification of child support must be based solely upon the
income or earning capacity the military parent has following his or
her period of military service.
On motion of Senator Palumbo, the following amendment to the
Military committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 2694) was reported by the Clerk and adopted:
On page three, section four hundred four, by striking out all
of subsection (c) and inserting in lieu thereof a new subsection
(c), to read as follows:
(c) A temporary parenting plan pursuant to this section shall
provide that the military parent has at least substantial custodial
responsibility of the child during a period of leave granted to the
military parent during their military service, unless the court
determines that it is not in the best interest of the child. If a
temporary parenting plan is not issued pursuant to this section,
the nonmilitary custodial parent shall make the child or children
reasonably available to the military parent when the military
parent has leave to ensure that the military parent has reasonable
custodial responsibility and is able to exercise custodial
responsibility of the child or children.
The question now being on the adoption of the Military
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2694), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2694) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2694) passed.
The following amendment to the title of the bill, from the
Committee on Military, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2694--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto two new
sections, designated §48-1-233.3 and §48-1-233.4; to amend said
code by adding thereto a new section, designated §48-9-404; to
amend and reenact §48-11-106 of said code; and to amend said code
by adding thereto a new section, designated §48-11-108, all
relating to modifying custodial rights and child support for a
parent who has been deployed for military service; providing
definitions; modifying the terms of a parenting plan; requiring
that any order is only a temporary order; providing for temporary modification of child support during the military service;
requiring an expedited process for modification of a child support
order; reinstating the child support obligation in place prior to
the parent's military service upon release from service; and
requiring that a further modification of child support be based
solely on the income and earning capacity the parent has after the
military service.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2719, Relating to the sale
and distribution of craft beer.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2737, Authorizing the
Administrative Director of the Supreme Court of Appeals to hire
regional or specialized probation officers.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2739, Enhancing the service
and enforcement of domestic violence protective orders issued by
state courts.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §48-27-505, §48-27-701, §48-27-902, §48-27-903 and
§48-27-1002 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto two new sections, designated §48-27-1003 and §48-27-1004,
all to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-505. Time period a protective order is in effect; extension
of order; notice of order or extension.
(a) Except as otherwise provided in subsection (d), section
four hundred one of this article, a protective order, entered by
the family court pursuant to this article, is effective for either
ninety days or one hundred eighty days, in the discretion of the
court. If the court enters an order for a period of ninety days,
upon receipt of a written request from the petitioner prior to the
expiration of the ninety-day period, the family court shall extend
its order for an additional ninety-day period.
(b) To be effective, a written request to extend an order from
ninety days to one hundred eighty days must be submitted to the
court prior to the expiration of the original ninety-day period.
A notice of the extension shall be sent by the clerk of the court
to the respondent by first-class mail, addressed to the last known
address of the respondent as indicated by the court file. The
extension of time is effective upon mailing of the notice.
(c) Certified copies of any order entered or extension notice
made under the provisions of this section shall be served upon the respondent by first class mail, addressed to the last known address
of the respondent as indicated by the court file, and delivered to
the petitioner and any law-enforcement agency having jurisdiction
to enforce the order, including the city police, the county
sheriff's office or local office of the West Virginia State Police
within twenty-four hours of the entry of the order. The protective
order shall be in full force and effect in every county of this
state.
(d) The family court may modify the terms of a protective
order upon motion of either party.
(e) The clerk of the circuit court shall cause a copy of any
protective order entered by the family court pursuant to the
provisions of this article or pursuant to the provisions of chapter
forty-eight of this code to be forwarded
to the magistrate or
magistrate court clerk and the magistrate or magistrate court clerk
shall forward a copy of the protective order to the appropriate
state and federal
agency agencies for registration of domestic
violence offenders as required by
state and federal law.
§48-27-701. Service of pleadings and orders by law-enforcement
officers.
Notwithstanding any other provision of this code to the
contrary, all law-enforcement officers are hereby authorized to
serve all pleadings and orders filed or entered pursuant to this
article on Sundays and legal holidays. No law-enforcement officer
shall refuse to serve any pleadings or orders entered pursuant to
this article.
Law enforcement shall attempt to serve all protective orders without delay: Provided, That service of process
shall be attempted within seventy-two hours of law enforcement's
receipt of the order. If service is not made, law enforcement shall
continue to attempt service on the respondent until proper service
is made.
§48-27-902. Violations of protective orders; criminal complaints.
(a) Any person authorized to file a petition pursuant to
section three hundred five of this article, and any person
authorized to file a petition for civil contempt pursuant to
section nine hundred one of this article may file a criminal
complaint:
(1) Against a respondent who knowingly and willfully violates
a provision of an emergency or final protective order entered
pursuant to:
(A) subsection (a) or (b) of section five hundred two of this
article;
(B) if the court has ordered such relief; subsection (2), (7)
or (9) of section five hundred three of this article;
(C) subsection (b) or (c) of section five hundred nine,
article five of this chapter; or
(D) subsection (b) or (c) of section six hundred eight,
article five of this chapter;.
(2) Against a person who violates a condition of bail,
probation or parole which has the express intent or effect of
protecting the personal safety of a particular person or persons;
(3) Against a respondent who knowingly and willfully violates the terms of a protection order from another jurisdiction that is
required to be enforced pursuant to section three, article twenty-
eight of this chapter; or
(4) Against a person who, in violation of subdivision (3),
subsection (a), section seven, article twenty-eight of this
chapter, knowingly and willfully violates the terms of a condition
of bail, probation or parole imposed in another state which has the
express intent or effect of protecting the personal safety of a
particular person or persons.
(b) If the court finds probable cause upon the complaint, the
court shall issue a warrant for the arrest of the person charged.
§48-27-903. Misdemeanor offenses for violation of protective
order, repeat offenses, penalties.
(a) Any person who knowingly and willfully violates:
(1) a provision of an emergency or final protective order
entered pursuant to: (A) subsection (a) or (b) of section five
hundred two of this article; (B) if the court has ordered such
relief; subsection (2), (7) or (9) of section five hundred three of
this article; (C) subsection (b) or (c) of section five hundred
nine, article five of this chapter; or (D) subsection (b) or (c) of
section six hundred eight, article five of this chapter; or
(2) a condition of bail, probation or parole which has the
express intent or effect of protecting the personal safety of a
particular person or persons; is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for a period of not
less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and
shall be fined not less than $250 nor more than $2,000.
(b) Any person who is convicted of a second or subsequent
offense under subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than three months nor more than one year, which jail
term shall include actual confinement of not less than twenty-four
hours, and fined not less than $500 nor more than $3,000, or both.
§48-27-1002. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code to the
contrary, if a person is alleged to have committed a violation of
the provisions of subsection (a) or (b), section twenty-eight,
article two, chapter sixty-one of this code against a family or
household member, in addition to any other authority to arrest
granted by this code, a law-enforcement officer has authority to
arrest that person without first obtaining a warrant if:
(1) The law-enforcement officer has observed credible
corroborative evidence that an offense has occurred; and either:
(2) The law-enforcement officer has received, from the victim
or a witness, an oral or written allegation of facts constituting
a violation of section twenty-eight, article two, chapter sixty-one
of this code; or
(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
(b) For purposes of this section, credible corroborative
evidence means evidence that is worthy of belief and corresponds to the allegations of one or more elements of the offense and may
include, but is not limited to, the following:
(1)
Condition of the alleged victim. -- One or more
contusions, scratches, cuts, abrasions, or swellings; missing hair;
torn clothing or clothing in disarray consistent with a struggle;
observable difficulty in breathing or breathlessness consistent
with the effects of choking or a body blow; observable difficulty
in movement consistent with the effects of a body blow or other
unlawful physical contact.
(2)
Condition of the accused. -- Physical injury or other
conditions similar to those set out for the condition of the victim
which are consistent with the alleged offense or alleged acts of
self-defense by the victim.
(3)
Condition of the scene. -- Damaged premises or
furnishings; disarray or misplaced objects consistent with the
effects of a struggle.
(4)
Other conditions. -- Statements by the accused admitting
one or more elements of the offense; threats made by the accused in
the presence of an officer; audible evidence of a disturbance heard
by the dispatcher or other agent receiving the request for police
assistance; written statements by witnesses.
(c) Whenever any person is arrested pursuant to subsection (a)
of this section, the arrested person shall be taken before a
magistrate within the county in which the offense charged is
alleged to have been committed in a manner consistent with the
provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.
(d) If an arrest for a violation of subsection (c), section
twenty-eight, article two, chapter sixty-one of this code is
authorized pursuant to this section, that fact constitutes prima
facie evidence that the accused constitutes a threat or danger to
the victim or other family or household members for the purpose of
setting conditions of bail pursuant to section seventeen-c, article
one-c, chapter sixty-two of this code.
(e) Whenever any person is arrested pursuant to the provisions
of this article or for a violation of an order issued pursuant
article five, section five hundred nine, the arresting officer,
subject to the requirements of the Constitutions of this State and
of the United States:
(1) Shall seize all weapons that are alleged to have been
involved or threatened to be used in the commission of domestic
violence;
and
(2) May seize a weapon that is in plain view of the officer or
was discovered pursuant to a consensual search, as necessary for
the protection of the officer or other persons;
and
(3) May seize all weapons that are possessed in violation of
a valid protective order.
§48-27-1003. Nonjudicial enforcement of order.
(a) A law-enforcement officer of this state, upon determining
that there is probable cause to believe that a valid protective
order exists and that the order has been violated, shall enforce
the order pursuant to any authority to arrest under the code. Presentation of a protective order that identifies both the
protected individual and the respondent and that appears, on its
face, to be authentic and currently in effect constitutes probable
cause to believe that a valid protective order exists. For the
purposes of this section, the protective order may be inscribed on
a tangible medium or may have been stored in an electronic or other
medium if it is retrievable in perceivable form. Presentation of
a certified copy of a protective order is not required for
enforcement.
(b) If a protective order is not presented, a law-enforcement
officer of this state may consider other credible information in
determining whether there is probable cause to believe that a valid
protective order exists.
(c) If a law-enforcement officer of this state determines that
an otherwise valid protective order cannot be enforced because the
respondent has not been notified of or served with the order, the
officer shall inform the respondent of the order, make a reasonable
effort to serve the order upon the respondent and allow the
respondent a reasonable opportunity to comply with the order before
enforcing the order.
§48-27-1004. Immunity.
This state or a local governmental agency, or a
law-enforcement officer, prosecuting attorney, clerk of court or
any state or local governmental official acting in an official
capacity, is immune from civil and criminal liability for an act or
omission arising out of the enforcement of a protective order or the detention or arrest of an alleged violator of a protective
order if the act or omission was done in good faith in an effort to
comply with this article.
The bill (Eng. Com. Sub. for H. B. No. 2739), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2739) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2739) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2739--A Bill to amend and
reenact §48-27-505, §48-27-701, §48-27-902, §48-27-903 and
§48-27-1002 of the Code of West Virginia, 1931, as amended; and to
amend said code by adding two new sections, designated §48-27-1003
and §48-27-1004, all relating to revising and expanding the
procedures and methods for service, enforcement, and registration
of domestic violence protective orders; requiring circuit court
clerks to forward copies of protective orders to magistrates or
magistrate court clerks; requiring magistrates or magistrate court
clerks to forward copies of protective orders to state and federal
agencies; requiring law enforcement to attempt service of
protective orders within seventy-two hours of receipt of order;
authorizing certain persons to file a criminal complaint for
violation of a protective order; providing a criminal penalty for
violation of a protective order; authorizing the seizure of weapons
possessed in violation of a protective order; authorizing
nonjudicial enforcement and service of state protective orders; and
providing civil and criminal immunity to government officials for
acts or omissions arising out of enforcement of a protective order,
or the detention or arrest of an alleged violator of a protective
order, if the official acted in a good faith effort to comply with the statutes related to the prevention and treatment of domestic
violence.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2771, Relating to the West
Virginia Alcohol and Drug-Free Workplace Act.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §21-1D-2 and §21-1D-8 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto two new sections, designated §21-1D-5a and §21-
1D-7b, all to read as follows:
ARTICLE 1D. WEST VIRGINIA ALCOHOL AND DRUG-FREE WORKPLACE ACT.
§21-1D-2. Definitions.
(a) The term "alcohol test" means a procedure conducted to
determine if an individual is under the influence of alcohol.
(b) The term "construction", as used in this article, means
any construction, reconstruction, improvement, enlargement,
painting, decorating or repair of any public improvement let to
contract
the value of which contract is over $100,000. The term
"construction" does not include temporary or emergency repairs.
(c) The term "contractor" means any employer working on a public improvement without regard to whether they are serving as
the prime or subcontractor to another.
(d) The term "drug test" means a procedure using
at least a
nine-panel drug screen in urine specimens that are collected from
individuals for the purpose of scientifically analyzing the
specimens to determine if the individual ingested, was injected or
otherwise exposed to a drug of abuse.
(e) The term "drug of abuse" means any substance listed under
subsection (h) of this section
and any other substance the employer
chooses to test for.
(f) The term "employee" means a laborer, mechanic or other
worker. For the purposes of this article, employee does not
include
such those persons as are employed or hired directly by a
public authority on a regular or temporary basis engaged
exclusively in making temporary or emergency repairs. Furthermore,
employee does not include
such those persons employed by a
contractor who does not work in public improvement construction.
(g) The term "medical review officer" means a physician who
holds a certificate authorizing them to practice medicine and
surgery or osteopathic medicine and surgery, has knowledge of
substance abuse disorders, has the appropriate medical training to
interpret and evaluate positive drug and alcohol test results
together with a person's medical history and other relevant
biomedical information, has successfully completed qualification
training as outlined in the Code of Federal Regulations at 49
C.F.R. Part 40 §121 (c) and has passed an exam administered by a nationally recognized medical review officer certification board or
subspecialty board for medical practitioners in the field of
medical review of federally mandated drug testing.
(h) The term "nine-panel drug screen" means a drug-testing
program that tests for marijuana, cocaine, opiates including
hydromorphone, oxycodone, hydrocodone, phencyclidine, amphetamines,
barbiturates, benzodiazepines, methadone and propoxyphene at the
substance screening and confirmation limits where provided under
federally mandated drug and alcohol testing programs or otherwise
accepted as the industry standard.
(i) The term "preemployment drug test" means a drug test taken
within the preceding twelve months from employment or seven days
after hire.
(i) (j) The term "public authority", as used in this article,
means any officer, board or commission or other agency of the State
of West Virginia,
its counties or municipalities or any political
subdivision thereof, authorized by law to enter into a contract for
the construction of a public improvement, including any institution
supported, in whole or in part, by public funds of the State of
West Virginia and this article applies to expenditures of these
institutions made, in whole or in part, from public funds.
(j) (k) The term "public improvement", as used in this
article, includes all buildings, roads, highways, bridges, streets,
alleys, sewers, ditches, sewage disposal plants, waterworks,
airports and all other structures upon which construction may be
let to contract by the State of West Virginia,
its counties or municipalities or any political subdivision thereof.
(k) (l) The term "random drug testing" means a procedure in
which employees who perform safety-sensitive tasks are selected to
undergo a drug test by a statistically valid random selection
method without prearrangement or planning.
(l) (m) The term "reasonable cause" means a belief based on
facts and inferences based primarily upon, but not limited to: (1)
Observable phenomena, such as direct observation of use, possession
or distribution of alcohol or a
controlled substance drug of abuse,
or of the physical symptoms of being under the influence of alcohol
or a
controlled substance drug of abuse, such as, but not limited
to, slurred speech, dilated pupils, odor of an alcoholic beverage
or a
controlled substance drug of abuse, changes in affect or
dynamic mood swings; (2) a pattern of abnormal conduct, erratic or
aberrant behavior or deteriorating work performance such as
frequent absenteeism, excessive tardiness or recurrent accidents,
that appears to be related to the use of alcohol or a
controlled
substance drug of abuse and does not appear to be attributable to
other factors; (3) the identification of an employee as the focus
of a criminal investigation into unauthorized possession, use or
trafficking of a
controlled substance drug of abuse; (4) a report
of use of alcohol or a
controlled substance drug of abuse provided
by a reliable and credible source; and (5) repeated or flagrant
violations of the safety or work rules of the employee's employer,
that are determined by the employee's supervisor to pose a
substantial risk of physical injury or property damage and that appears to be related to the use of alcohol or a
controlled
substance drug of abuse and that does not appear attributable to
other factors.
(m) (n) The term "safety-sensitive duty" means any task or
duty fraught with such risks of injury to the employee or others
that even a momentary lapse of attention or judgment, or both, can
lead to serious bodily harm or death.
(n) (o) The term "under the influence of alcohol" means a
concentration of eight hundredths of one percent or more by weight
of alcohol in an individual's blood or a concentration of eight
hundredths of one gram or more by weight of alcohol per two hundred
ten liters of an individual's breath.
§21-1D-5a. Drug-free workplace policy not applicable to workers
required to follow federal Department of Transportation drug
testing guidelines.
In instances where a worker is required by law to follow
United States Department of Transportation drug testing guidelines,
no additional drug tests are required under this article.
§21-1D-7b. Contractor to provide certified drug-free workplace
report.
No less than once per year, or upon completion of the project,
every contractor shall provide a certified report to the public
authority which let the contract. The report shall include:
(1) Information to show that the education and training
service to the requirements of section five of this article was
provided;
(2) The name of the laboratory certified by the United States
Department of Health and Human Services or its successor that
performs the drug tests pursuant to this article;
(3) The average number of employees in connection with the
construction on the public improvement;
(4) Drug test results for the following categories including
the number of positive tests and the number of negative tests:
(A) Preemployment and new hires;
(B) Reasonable suspicion;
(C) Post-accident;
(D) Random.
§21-1D-8. Penalties for violation of this article.
(a) Any contractor who violates any provision of this article
is, for the first offense, guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000; for the
second offense, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $1,000 nor more
than $5,000; for the third or any subsequent offense
within the
preceding five years , the person is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than $5,000 nor
more than $25,000 and the contractor shall be excluded from bidding
any additional new public improvement projects for a period of one
year.
(b) Any person who directly or indirectly aids, requests or
authorizes any other person to violate any of the provisions of
this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $250.
On motion of Senator Caruth, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 2771) was reported by the Clerk:
On page one, section two, subsection (c), after the word
"employer" by inserting the words "with fifteen or more employees".
Following discussion,
The question being on the adoption of Senator Caruth's
amendment to the Judiciary committee amendment to the bill, the
same was put and did not prevail.
On motion of Senator Caruth, the following amendments to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 2771) were next reported by the Clerk and considered
simultaneously:
On page three, section two, subsection (j), after the word
"Virginia" by striking out the comma and the words "its counties or
municipalities or any political subdivision thereof,";
And,
On pages three and four, section two, subsection (k), after
the word "Virginia" by striking out the comma and the words "its
counties or municipalities or any political subdivision thereof".
The question being on the adoption of Senator Caruth's
amendment to the Judiciary committee amendment to the bill, the
same was put and did not prevail.
The question now being on the adoption of the Judiciary
committee amendment to the bill, the same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2771), as amended, was
then ordered to third reading.
Eng. House Bill No. 2801, Updating language and making
technical changes and clarifications of the West Virginia Board of
Medicine.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2819, Authorizing
miscellaneous agencies and boards to promulgate legislative rules.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page twenty, section seven, line twenty-seven, after the
word "authorized" by changing the period to a comma and adding the
following: with the following amendment:
On page twenty, section seven, line twenty-seven, by striking
out "3" and inserting in lieu thereof "13";
And,
On pages one and two, section seven, by striking out all of
subsection 1.5.
The bill (Eng. Com. Sub. for H. B. No. 2819), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2819) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2819) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2819) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2841, Extending the time for the city
council of Richwood to meet as a levying body.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2860, Regulating the
sequestration and storage of carbon dioxide.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
Thereafter, the bill (Eng. Com. Sub. for H. B. No. 2860) was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2869, Lengthening the time
frame for the filing of post-primary and post general campaign
financial statements.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 2913, Relating to the Statewide
Independent Living Council.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2999, Relating to the
Streamlined Sales and Use Tax Agreement and the West Virginia
consumers sales and service tax and use tax.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3011, Repealing the section of code
relating to limitation on political activity of officers or
employees in the administration of the Vocational Rehabilitation
Program.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3017, Exempting from the
consumers sales and service tax and use tax any sales of donated
clothing or clothing accessories.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator McCabe, the following amendments to the
bill were reported by the Clerk, considered simultaneously, and
adopted:
On page two, after section nine-l, by adding the provisions of
Engrossed Senate Bill No. 645;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §11-8-6e 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 §11-15-9l, all to read as
follows:.
The bill (Eng. Com. Sub. for H. B. No. 3017), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3017) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3017) passed.
On motion of Senator McCabe, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3017--A Bill to amend and
reenact §11-8-6e of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto a new section, designated
§11-15-9l, relating to clarifying in the code that a municipality
or county issuing bonds approved by an election pursuant to article
one, chapter thirteen of said code is not subject to the
restriction described in subsection (c), section six-e, article
eight, chapter eleven of said code; exempting tax-exempt
organizations engaged in retail sales of clothing and clothing
accessories from the consumers sales tax; and authorizing the Tax
Commissioner to designate the exemption as a per se exemption, thus
exemption certificates would not be required.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3063, Relating to hunting,
tagging and reporting bear.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3146, Relating to seniority
rights for school service personnel.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18A-4-8 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §18A-4-8a of said code be amended
and reenacted; that §18A-4-8b of said code be amended and
reenacted; and that §18A-4-17 of said code be amended and
reenacted, all to read as follows:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8. Employment term and class titles of service personnel;
definitions.
(a) The purpose of this section is to establish an employment
term and class titles for service personnel. The employment term
for service personnel may not be less than ten months. A month is
defined as twenty employment days.
Provided, That The county board
may contract with all or part of these service personnel for a
longer term. The beginning and closing dates of the ten-month
employment term may not exceed forty-three weeks.
(b) Service personnel employed on a yearly or twelve-month
basis may be employed by calendar months. Whenever there is a change in job assignment during the school year, the minimum pay
scale and any county supplement
are applicable apply.
(c) Service personnel employed in the same classification for
more than the two hundred day minimum employment term
shall be are
paid for additional employment at a daily rate of not less than the
daily rate paid for the two hundred day minimum employment term.
(d) A service person may not be required to report for work
more than five days per week without his or her agreement, and no
part of any working day may be accumulated by the employer for
future work assignments, unless the employee agrees thereto.
(e) If a service person whose regular work week is scheduled
from Monday through Friday agrees to perform any work assignments
on a Saturday or Sunday, the service person
shall be is paid for at
least one-half day of work for each day he or she reports for work.
If the service person works more than three and one-half hours on
any Saturday or Sunday, he or she shall be paid for at least a full
day of work for each day.
(f) A custodian, aide, maintenance, office and school lunch
service person required to work a daily work schedule that is
interrupted
shall be is paid additional compensation.
(1) A maintenance person is defined as a person who holds a
classification title other than in a custodial, aide, school lunch,
office or transportation category as provided in section one,
article one of this chapter.
(2) A service person's schedule is considered to be
interrupted if he or she does not work a continuous period in one day. Aides are not regarded as working an interrupted schedule
when engaged exclusively in the duties of transporting students;
(3) The additional compensation provided for in this
subsection:
(A) Is equal to at least one eighth of a service person's
total salary as provided by the state minimum pay scale and any
county pay supplement; and
(B) Is payable entirely from county board funds.
(g) When there is a change in classification or when a service
person meets the requirements of an advanced classification, his or
her salary shall be made to comply with the requirements of this
article and any county salary schedule in excess of the minimum
requirements of this article, based upon the service person's
advanced classification and allowable years of employment.
(h) A service person's, contract as provided in section five,
article two of this chapter, shall state the appropriate monthly
salary the employee is to be paid, based on the class title as
provided in this article and on any county salary schedule in
excess of the minimum requirements of this article.
(i) The column heads of the state minimum pay scale and class
titles, set forth in section eight-a of this article, are defined
as follows:
(1) "Pay grade" means the monthly salary applicable to class
titles of service personnel;
(2) "Years of employment" means the number of years which an
employee classified as a service person has been employed by a county board in any position prior to or subsequent to the
effective date of this section and includes service in the armed
forces of the United States, if the employee was employed at the
time of his or her induction. For the purpose of section eight-a
of this article, years of employment is limited to the number of
years shown and allowed under the state minimum pay scale as set
forth in section eight-a of this article;
(3) "Class title" means the name of the position or job held
by a service person;
(4) "Accountant I" means a person employed to maintain payroll
records and reports and perform one or more operations relating to
a phase of the total payroll;
(5) "Accountant II" means a person employed to maintain
accounting records and to be responsible for the accounting process
associated with billing, budgets, purchasing and related
operations;
(6) "Accountant III" means a person employed in the county
board office to manage and supervise accounts payable, payroll
procedures, or both;
(7) "Accounts payable supervisor" means a person employed in
the county board office who has primary responsibility for the
accounts payable function and who either has completed twelve
college hours of accounting courses from an accredited institution
of higher education or has at least eight years of experience
performing progressively difficult accounting tasks.
Responsibilities of this class title may include supervision of other personnel;
(8) "Aide I" means a person selected and trained for a
teacher-aide classification such as monitor aide, clerical aide,
classroom aide or general aide;
(9) "Aide II" means a service person referred to in the "Aide
I" classification who has completed a training program approved by
the State Board, or who holds a high school diploma or has received
a general educational development certificate. Only a person
classified in an Aide II class title may be employed as an aide in
any special education program;
(10) "Aide III" means a service person referred to in the
"Aide I" classification who holds a high school diploma or a
general educational development certificate; and
(A) Has completed six semester hours of college credit at an
institution of higher education; or
(B) Is employed as an aide in a special education program and
has one year's experience as an aide in special education;
(11) "Aide IV" means a service person referred to in the "Aide
I" classification who holds a high school diploma or a general
educational development certificate; and
(A) Has completed eighteen hours of State Board-approved
college credit at a regionally accredited institution of higher
education, or
(B) Has completed fifteen hours of State Board-approved
college credit at a regionally accredited institution of higher
education; and has successfully completed an in-service training program determined by the State Board to be the equivalent of three
hours of college credit;
(12) "Audiovisual technician" means a person employed to
perform minor maintenance on audiovisual equipment, films, and
supplies and who fills requests for equipment;
(13) "Auditor" means a person employed to examine and verify
accounts of individual schools and to assist schools and school
personnel in maintaining complete and accurate records of their
accounts;
(14) "Autism mentor" means a person who works with autistic
students and who meets standards and experience to be determined by
the State Board. A person who has held or holds an aide title and
becomes employed as an autism mentor shall hold a
multiclassification status that includes both aide and autism
mentor titles, in accordance with section eight-b of this article;
(15) "Braille or sign language specialist" means a person
employed to provide braille and/or sign language assistance to
students. A service person who has held or holds an aide title and
becomes employed as a braille or sign language specialist shall
hold a multiclassification status that includes both aide and
braille or sign language specialist title, in accordance with
section eight-b of this article;
(16) "Bus operator" means a person employed to operate school
buses and other school transportation vehicles as provided by the
State Board;
(17) "Buyer" means a person employed to review and write specifications, negotiate purchase bids and recommend purchase
agreements for materials and services that meet predetermined
specifications at the lowest available costs;
(18) "Cabinetmaker" means a person employed to construct
cabinets, tables, bookcases and other furniture;
(19) "Cafeteria manager" means a person employed to direct the
operation of a food services program in a school, including
assigning duties to employees, approving requisitions for supplies
and repairs, keeping inventories, inspecting areas to maintain high
standards of sanitation, preparing financial reports and keeping
records pertinent to food services of a school;
(20) "Carpenter I" means a person classified as a carpenter's
helper;
(21) "Carpenter II" means a person classified as a journeyman
carpenter;
(22) "Chief mechanic" means a person employed to be
responsible for directing activities which ensure that student
transportation or other county board-owned vehicles are properly
and safely maintained;
(23) "Clerk I" means a person employed to perform clerical
tasks;
(24) "Clerk II" means a person employed to perform general
clerical tasks, prepare reports and tabulations and operate office
machines;
(25) "Computer operator" means a qualified person employed to
operate computers;
(26) "Cook I" means a person employed as a cook's helper;
(27) "Cook II" means a person employed to interpret menus and
to prepare and serve meals in a food service program of a school.
This definition includes a service person who has been employed as
a "Cook I" for a period of four years;
(28) "Cook III" means a person employed to prepare and serve
meals, make reports, prepare requisitions for supplies, order
equipment and repairs for a food service program of a school
system;
(29) "Crew leader" means a person employed to organize the
work for a crew of maintenance employees to carry out assigned
projects;
(30) "Custodian I" means a person employed to keep buildings
clean and free of refuse;
(31) "Custodian II" means a person employed as a watchman or
groundsman;
(32) "Custodian III" means a person employed to keep buildings
clean and free of refuse, to operate the heating or cooling systems
and to make minor repairs;
(33) "Custodian IV" means a person employed as
a head
custodians custodian. In addition to providing services as defined
in "custodian III," duties may include supervising other custodian
personnel;
(34) "Director or coordinator of services" means an employee
of a county board who is assigned to direct a department or
division.
(A) Nothing in this subdivision prohibits a professional
person or a professional educator from holding this class title;
(B) Professional personnel holding this class title may not be
defined or classified as service personnel unless the professional
person held a service personnel title under this section prior to
holding the class title of "director or coordinator of services."
(C) The director or coordinator of services shall be
classified either as a professional person or a service person for
state aid formula funding purposes; and
(D) Funding for the position of director or coordinator of
services is based upon the employment status of the director or
coordinator either as a professional person or a service person;
(35) "Draftsman" means a person employed to plan, design and
produce detailed architectural/engineering drawings;
(36) "Electrician I" means a person employed as an apprentice
electrician helper or one who holds an electrician helper license
issued by the state fire marshal;
(37) "Electrician II" means a person employed as an
electrician journeyman or one who holds a journeyman electrician
license issued by the state fire marshal;
(38) "Electronic technician I" means a person employed at the
apprentice level to repair and maintain electronic equipment;
(39) "Electronic technician II" means a person employed at the
journeyman level to repair and maintain electronic equipment;
(40) "Executive secretary" means a person employed as
secretary to the county school superintendent or as a secretary who is assigned to a position characterized by significant
administrative duties;
(41) "Food services supervisor" means a qualified person who
is not a professional person or professional educator as defined in
section one, article one of this chapter. The food services
supervisor is employed to manage and supervise a county school
system's food service program. The duties include preparing
in-service training programs for cooks and food service employees,
instructing personnel in the areas of quantity cooking with economy
and efficiency and keeping aggregate records and reports;
(42) "Foreman" means a skilled person employed to supervise
personnel who work in the areas of repair and maintenance of school
property and equipment;
(43) "General maintenance" means a person employed as a helper
to skilled maintenance employees and to perform minor repairs to
equipment and buildings of a county school system;
(44) "Glazier" means a person employed to replace glass or
other materials in windows and doors and to do minor carpentry
tasks;
(45) "Graphic artist" means a person employed to prepare
graphic illustrations;
(46) "Groundsman" means a person employed to perform duties
that relate to the appearance, repair and general care of school
grounds in a county school system. Additional assignments may
include the operation of a small heating plant and routine cleaning
duties in buildings;
(47) "Handyman" means a person employed to perform routine
manual tasks in any operation of the county school system;
(48) "Heating and air conditioning mechanic I" means a person
employed at the apprentice level to install, repair and maintain
heating and air conditioning plants and related electrical
equipment;
(49) "Heating and air conditioning mechanic II" means a person
employed at the journeyman level to install, repair and maintain
heating and air conditioning plants and related electrical
equipment;
(50) "Heavy equipment operator" means a person employed to
operate heavy equipment;
(51) "Inventory supervisor" means a person employed to
supervise or maintain operations in the receipt, storage, inventory
and issuance of materials and supplies;
(52) "Key punch operator" means a qualified person employed to
operate key punch machines or verifying machines;
(53) "Licensed practical nurse" means a nurse, licensed by the
West Virginia Board of Examiners for Licensed Practical Nurses,
employed to work in a public school under the supervision of a
school nurse;
(54) "Locksmith" means a person employed to repair and
maintain locks and safes;
(55) "Lubrication man" means a person employed to lubricate
and service gasoline or diesel-powered equipment of a county school
system;
(56) "Machinist" means a person employed to perform machinist
tasks which include the ability to operate a lathe, planer, shaper,
threading machine and wheel press. A person holding this class
title also should have the ability to work from blueprints and
drawings;
(57) "Mail clerk" means a person employed to receive, sort,
dispatch, deliver or otherwise handle letters, parcels and other
mail;
(58) "Maintenance clerk" means a person employed to maintain
and control a stocking facility to keep adequate tools and supplies
on hand for daily withdrawal for all school maintenance crafts;
(59) "Mason" means a person employed to perform tasks
connected with brick and block laying and carpentry tasks related
to these activities;
(60) "Mechanic" means a person employed to perform skilled
duties independently in the maintenance and repair of automobiles,
school buses and other mechanical and mobile equipment
to use used
in a county school system;
(61) "Mechanic assistant" means a person employed as a
mechanic apprentice and helper;
(62) "Multiclassification" means a person employed to perform
tasks that involve the combination of two or more class titles in
this section. In these instances the minimum salary scale
shall be
is the higher pay grade of the class titles involved;
(63) "Office equipment repairman I" means a person employed as
an office equipment repairman apprentice or helper;
(64) "Office equipment repairman II" means a person
responsible for servicing and repairing all office machines and
equipment. A person holding this class title is responsible for
the purchase of parts necessary for the proper operation of a
program of continuous maintenance and repair;
(65) "Painter" means a person employed to perform duties
painting, finishing and decorating wood, metal and concrete
surfaces of buildings, other structures, equipment, machinery and
furnishings of a county school system;
(66) "Paraprofessional" means a person certified pursuant to
section two-a, article three of this chapter to perform duties in
a support capacity including, but not limited to, facilitating in
the instruction and direct or indirect supervision of students
under the direction of a principal, a teacher or another designated
professional educator.
(A) A person employed on the effective date of this section in
the position of an aide may not be subject to a reduction in force
or transferred to create a vacancy for the employment of a
paraprofessional;
(B) A person who has held or holds an aide title and becomes
employed as a paraprofessional
shall hold holds a
multiclassification status that includes both aide and
paraprofessional titles in accordance with section eight-b of this
article; and
(C) When a service person who holds an aide title becomes
certified as a paraprofessional and is required to perform duties that may not be performed by an aide without paraprofessional
certification, he or she shall receive the paraprofessional title
pay grade;
(67) "Payroll supervisor" means a person employed in the
county board office who has primary responsibility for the payroll
function and who either has completed twelve college hours of
accounting from an accredited institution of higher education or
has at least eight years of experience performing progressively
difficult accounting tasks. Responsibilities of this class title
may include supervision of other personnel;
(68) "Plumber I" means a person employed as an apprentice
plumber and helper;
(69) "Plumber II" means a person employed as a journeyman
plumber;
(70) "Printing operator" means a person employed to operate
duplication equipment, and to cut, collate, staple, bind and shelve
materials as required;
(71) "Printing supervisor" means a person employed to
supervise the operation of a print shop;
(72) "Programmer" means a person employed to design and
prepare programs for computer operation;
(73) "Roofing/sheet metal mechanic" means a person employed to
install, repair, fabricate and maintain roofs, gutters, flashing
and duct work for heating and ventilation;
(74) "Sanitation plant operator" means a person employed to
operate and maintain a water or sewage treatment plant to ensure the safety of the plant's effluent for human consumption or
environmental protection;
(75) "School bus supervisor" means a qualified person employed
to assist in selecting school bus operators and routing and
scheduling school buses, operate a bus when needed, relay
instructions to bus operators, plan emergency routing of buses and
promote good relationships with parents, students, bus operators
and other employees;
(76) "Secretary I" means a person employed to transcribe from
notes or mechanical equipment, receive callers, perform clerical
tasks, prepare reports and operate office machines;
(77) "Secretary II" means a person employed in any elementary,
secondary, kindergarten, nursery, special education, vocational or
any other school as a secretary. The duties may include performing
general clerical tasks; transcribing from notes, stenotype,
mechanical equipment or a sound-producing machine; preparing
reports; receiving callers and referring them to proper persons;
operating office machines; keeping records and handling routine
correspondence. Nothing in this subdivision prevents a service
person from holding or being elevated to a higher classification;
(78) "Secretary III" means a person assigned to the county
board office administrators in charge of various instructional,
maintenance, transportation, food services, operations and health
departments, federal programs or departments with particular
responsibilities in purchasing and financial control or any person
who has served for eight years in a position which meets the definition of "secretary II" or "secretary III";;
(79) "Supervisor of maintenance" means a skilled person who is
not a professional person or professional educator as defined in
section one, article one of this chapter. The responsibilities
include directing the upkeep of buildings and shops, and issuing
instructions to subordinates relating to cleaning, repairs and
maintenance of all structures and mechanical and electrical
equipment of a county board;
(80) "Supervisor of transportation" means a qualified person
employed to direct school transportation activities properly and
safely, and to supervise the maintenance and repair of vehicles,
buses and other mechanical and mobile equipment used by the county
school system;
(81) "Switchboard operator-receptionist" means a person
employed to refer incoming calls, to assume contact with the
public, to direct and to give instructions as necessary, to operate
switchboard equipment and to provide clerical assistance;
(82) "Technology system specialist" means a service person who
has expertise in technology fields, who meets the education and
certification requirements determined by the state board and who is
employed by a county board to support and maintain local area
networks, servers, computer workstations and other computer related
systems and technologies;
(82) (83) "Truck driver" means a person employed to operate
light or heavy duty gasoline and diesel-powered vehicles;
(83) (84) "Warehouse clerk" means a person employed to be responsible for receiving, storing, packing and shipping goods;
(84) (85) "Watchman" means a person employed to protect school
property against damage or theft. Additional assignments may
include operation of a small heating plant and routine cleaning
duties;
(85) (86) "Welder" means a person employed to provide
acetylene or electric welding services for a school system; and
(86) (87) "WVEIS data entry and administrative clerk" means a
person employed to work under the direction of a school principal
to assist the school counselor or counselors in the performance of
administrative duties, to perform data entry tasks on the West
Virginia Education Information System, and to perform other
administrative duties assigned by the principal.
(j) Notwithstanding any provision in this code to the
contrary, and in addition to the compensation provided for service
personnel in section eight-a of this article, each service person
is entitled to all service personnel employee rights, privileges
and benefits provided under this or any other chapter of this code
without regard to the employee's hours of employment or the methods
or sources of compensation.
(k) A service person whose years of employment exceeds the
number of years shown and provided for under the state minimum pay
scale set forth in section eight-a of this article may not be paid
less than the amount shown for the maximum years of employment
shown and provided for in the classification in which he or she is
employed.
(l) Each county board shall review each service person's job
classification annually and shall reclassify all service persons as
required by the job classifications. The state superintendent may
withhold state funds appropriated pursuant to this article for
salaries for service personnel who are improperly classified by the
county boards. Further, the state superintendent shall order a
county board to correct immediately any improper classification
matter and, with the assistance of the attorney general, shall take
any legal action necessary against any county board to enforce the
order.
(m) Without his or her written consent, a service person may
not be:
(1) Reclassified by class title; or
(2) Relegated to any condition of employment which would
result in a reduction of his or her salary, rate of pay,
compensation or benefits earned during the current fiscal year; or
for which he or she would qualify by continuing in the same job
position and classification held during that fiscal year and
subsequent years.
(n) Any county board failing to comply with the provisions of
this article may be compelled to do so by mandamus and is liable to
any party prevailing against the board for court costs and the
prevailing party's reasonable attorney fee, as determined and
established by the court.
(o) Notwithstanding any provision of this code to the
contrary, a service person who holds a continuing contract in a specific job classification and who is physically unable to perform
the job's duties as confirmed by a physician chosen by the
employee,
shall be is given priority status over any employee not
holding a continuing contract in filling other service personnel
job vacancies if the service person is qualified as provided in
section eight-e of this article.
(p) Any person employed in an aide position on the effective
date of this section may not be transferred or subject to a
reduction in force for the purpose of creating a vacancy for the
employment of a licensed practical nurse.
(q) Without the written consent of the service person, a
county board may not establish the beginning work station for a bus
operator or transportation aide at any site other than a county
board-owned facility with available parking. The workday of the
bus operator or transportation aide commences at the bus at the
designated beginning work station and ends when the employee is
able to leave the bus at the designated beginning work station,
unless he or she agrees otherwise in writing. The application or
acceptance of a posted position may not be construed as the written
consent referred to in this subsection.
§18A-4-8a. Service personnel minimum monthly salaries.
(a) The minimum monthly pay for each service employee whose
employment is for a period of more than three and one-half hours a
day
shall be is at least the amounts indicated in the state minimum
pay scale pay grade and the minimum monthly pay for each service
employee whose employment is for a period of three and one-half hours or less a day
shall be is at least one-half the amount
indicated in the state minimum pay scale pay grade set forth in
this section.
|
STATE MINIMUM PAY SCALE PAY GRADE
|
Years
Exp
.
|
PAY GRADE
|
|
|
A
|
B
|
C
|
D
|
E
|
F
|
G
|
H
|
|
0
|
1,577
|
1,598
|
1,639
|
1,691
|
1,743
|
1,805
|
1,836
|
1,908
|
|
1
|
1,609
|
1,630
|
1,671
|
1,723
|
1,775
|
1,837
|
1,868
|
1,940
|
|
2
|
1,641
|
1,662
|
1,703
|
1,755
|
1,807
|
1,869
|
1,900
|
1,972
|
|
3
|
1,673
|
1,694
|
1,735
|
1,787
|
1,839
|
1,901
|
1,932
|
2,004
|
|
4
|
1,705
|
1,726
|
1,767
|
1,819
|
1,871
|
1,933
|
1,964
|
2,037
|
|
5
|
1,737
|
1,758
|
1,799
|
1,851
|
1,903
|
1,965
|
1,996
|
2,069
|
|
6
|
1,769
|
1,790
|
1,832
|
1,883
|
1,935
|
1,997
|
2,028
|
2,101
|
|
7
|
1,802
|
1,822
|
1,864
|
1,915
|
1,967
|
2,029
|
2,060
|
2,133
|
|
8
|
1,834
|
1,854
|
1,896
|
1,947
|
1,999
|
2,061
|
2,092
|
2,165
|
|
9
|
1,866
|
1,886
|
1,928
|
1,980
|
2,031
|
2,093
|
2,124
|
2,197
|
|
10
|
1,898
|
1,919
|
1,960
|
2,012
|
2,063
|
2,126
|
2,157
|
2,229
|
|
11
|
1,930
|
1,951
|
1,992
|
2,044
|
2,095
|
2,158
|
2,189
|
2,261
|
|
12
|
1,962
|
1,983
|
2,024
|
2,076
|
2,128
|
2,190
|
2,221
|
2,293
|
|
13
|
1,994
|
2,015
|
2,056
|
2,108
|
2,160
|
2,222
|
2,253
|
2,325
|
|
14
|
2,026
|
2,047
|
2,088
|
2,140
|
2,192
|
2,254
|
2,285
|
2,357
|
|
15
|
2,058
|
2,079
|
2,120
|
2,172
|
2,224
|
2,286
|
2,317
|
2,389
|
|
16
|
2,090
|
2,111
|
2,152
|
2,204
|
2,256
|
2,318
|
2,349
|
2,422
|
|
17
|
2,122
|
2,143
|
2,185
|
2,236
|
2,288
|
2,350
|
2,381
|
2,454
|
|
18
|
2,154
|
2,175
|
2,217
|
2,268
|
2,320
|
2,382
|
2,413
|
2,486
|
|
19
|
2,187
|
2,207
|
2,249
|
2,300
|
2,352
|
2,414
|
2,445
|
2,518
|
|
20
|
2,219
|
2,239
|
2,281
|
2,333
|
2,384
|
2,446
|
2,477
|
2,550
|
|
21
|
2,251
|
2,271
|
2,313
|
2,365
|
2,416
|
2,478
|
2,509
|
2,582
|
|
22
|
2,283
|
2,304
|
2,345
|
2,397
|
2,448
|
2,511
|
2,542
|
2,614
|
|
23
|
2,315
|
2,336
|
2,377
|
2,429
|
2,481
|
2,543
|
2,574
|
2,646
|
|
24
|
2,347
|
2,368
|
2,409
|
2,461
|
2,513
|
2,575
|
2,606
|
2,678
|
|
25
|
2,379
|
2,400
|
2,441
|
2,493
|
2,545
|
2,607
|
2,638
|
2,710
|
|
26
|
2,411
|
2,432
|
2,473
|
2,525
|
2,577
|
2,639
|
2,670
|
2,742
|
|
27
|
2,443
|
2,464
|
2,505
|
2,557
|
2,609
|
2,671
|
2,702
|
2,774
|
|
28
|
2,475
|
2,496
|
2,537
|
2,589
|
2,641
|
2,703
|
2,734
|
2,807
|
|
29
|
2,507
|
2,528
|
2,570
|
2,621
|
2,673
|
2,735
|
2,766
|
2,839
|
|
30
|
2,540
|
2,560
|
2,602
|
2,653
|
2,705
|
2,767
|
2,798
|
2,871
|
|
31
|
2,572
|
2,592
|
2,634
|
2,685
|
2,737
|
2,799
|
2,830
|
2,903
|
|
32
|
2,604
|
2,624
|
2,666
|
2,718
|
2,769
|
2,831
|
2,862
|
2,935
|
|
33
|
2,636
|
2,656
|
2,698
|
2,750
|
2,801
|
2,863
|
2,895
|
2,967
|
|
34
|
2,668
|
2,689
|
2,730
|
2,782
|
2,833
|
2,896
|
2,927
|
2,999
|
|
35
|
2,700
|
2,721
|
2,762
|
2,814
|
2,866
|
2,928
|
2,959
|
3,031
|
|
36
|
2,732
|
2,753
|
2,794
|
2,846
|
2,898
|
2,960
|
2,991
|
3,063
|
|
37
|
2,764
|
2,785
|
2,826
|
2,878
|
2,930
|
2,992
|
3,023
|
3,095
|
|
38
|
2,796
|
2,817
|
2,858
|
2,910
|
2,962
|
3,024
|
3,055
|
3,127
|
|
39
|
2,828
|
2,849
|
2,890
|
2,942
|
2,994
|
3,056
|
3,087
|
3,159
|
|
40
|
2,860
|
2,881
|
2,922
|
2,974
|
3,026
|
3,088
|
3,119
|
3,192
|
(Class Title) Pay Grade
Accountant I .................................................. D
Accountant II ................................................. E
Accountant III ................................................ F
Accounts Payable Supervisor ................................... G
Aide I ........................................................ A
Aide II ....................................................... B
Aide III ...................................................... C
Aide IV ....................................................... D
Audiovisual Technician ........................................ C
Auditor ....................................................... G
Autism Mentor ................................................. F
Braille or Sign Language Specialist ........................... E
Bus Operator .................................................. D
Buyer ......................................................... F
Cabinetmaker .................................................. G
Cafeteria Manager ............................................. D
Carpenter I ................................................... E
Carpenter II .................................................. F
Chief Mechanic ................................................ G
Clerk I ....................................................... B
Clerk II....................................................... C
Computer Operator ............................................. E
Cook I ........................................................ A
Cook II ....................................................... B
Cook III ...................................................... C
Crew Leader ................................................... F
Custodian I ................................................... A
Custodian II .................................................. B
Custodian III ................................................. C
Custodian IV .................................................. D
Director or Coordinator of Services ........................... H
Draftsman ..................................................... D
Electrician I ................................................. F
Electrician II ................................................ G
Electronic Technician I ....................................... F
Electronic Technician II ...................................... G
Executive Secretary ........................................... G
Food Services Supervisor ...................................... G
Foreman ....................................................... G
General Maintenance ........................................... C
Glazier ....................................................... D
Graphic Artist ................................................ D
Groundsman .................................................... B
Handyman ...................................................... B
Heating and Air Conditioning Mechanic I ....................... E
Heating and Air Conditioning Mechanic II ...................... G
Heavy Equipment Operator ...................................... E
Inventory Supervisor ........................................... D
Key Punch Operator ............................................ B
Licensed Practical Nurse ...................................... F
Locksmith ..................................................... G
Lubrication Man ............................................... C
Machinist ..................................................... F
Mail Clerk .................................................... D
Maintenance Clerk ............................................. C
Mason ......................................................... G
Mechanic ...................................................... F
Mechanic Assistant ............................................ E
Office Equipment Repairman I .................................. F
Office Equipment Repairman II ................................. G
Painter ....................................................... E
Paraprofessional .............................................. F
Payroll Supervisor ............................................ G
Plumber I ..................................................... E
Plumber II .................................................... G
Printing Operator ............................................. B
Printing Supervisor ........................................... D
Programmer .................................................... H
Roofing/Sheet Metal Mechanic .................................. F
Sanitation Plant Operator ..................................... G
School Bus Supervisor ......................................... E
Secretary I ................................................... D
Secretary II .................................................. E
Secretary III ................................................. F
Supervisor of Maintenance ..................................... H
Supervisor of Transportation .................................. H
Switchboard Operator-Receptionist ............................. D
Technology System Specialist .................................. G
Truck Driver .................................................. D
Warehouse Clerk ............................................... C
Watchman ...................................................... B
Welder ........................................................ F
WVEIS Data Entry and Administrative Clerk ..................... B
(b) An additional twelve dollars per month shall be is added
to the minimum monthly pay of each service employee who holds a high school diploma or its equivalent.
(c) An additional eleven dollars per month also shall be is
added to the minimum monthly pay of each service employee for each
of the following:
(1) A service employee who holds twelve college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(2) A service employee who holds twenty-four college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(3) A service employee who holds thirty-six college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(4) A service employee who holds forty-eight college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(5) A service employee who holds sixty college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(6) A service employee who holds seventy-two college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(7) A service employee who holds eighty-four college hours or
comparable credit obtained in a trade or vocational school as
approved by the state board;
(8) A service employee who holds ninety-six college hours or comparable credit obtained in a trade or vocational school as
approved by the state board;
(9) A service employee who holds one hundred eight college
hours or comparable credit obtained in a trade or vocational school
as approved by the state board;
(10) A service employee who holds one hundred twenty college
hours or comparable credit obtained in a trade or vocational school
as approved by the state board;
(d) An additional forty dollars per month also shall be is
added to the minimum monthly pay of each service employee for each
of the following:
(1) A service employee who holds an associate's degree;
(2) A service employee who holds a bachelor's degree;
(3) A service employee who holds a master's degree;
(4) A service employee who holds a doctorate degree.
(e) An additional eleven dollars per month shall be is added
to the minimum monthly pay of each service employee for each of the
following:
(1) A service employee who holds a bachelor's degree plus
fifteen college hours;
(2) A service employee who holds a master's degree plus
fifteen college hours;
(3) A service employee who holds a master's degree plus thirty
college hours;
(4) A service employee who holds a master's degree plus
forty-five college hours; and
(5) A service employee who holds a master's degree plus sixty
college hours.
(f) When any part of a school service employee's daily shift
of work is performed between the hours of six o'clock p.m. and five
o'clock a.m. the following day, the employee shall be is paid no
less than an additional ten dollars per month and one half of the
pay shall be is paid with local funds.
(g) Any service employee required to work on any legal school
holiday shall be is paid at a rate one and one-half times the
employee's usual hourly rate.
(h) Any Full-time service personnel required to work in excess
of their normal working day during any week which contains a school
holiday for which they are paid shall be are paid for the
additional hours or fraction of the additional hours at a rate of
one and one-half times their usual hourly rate and paid entirely
from county board funds.
(i) No service employee may have his or her daily work
schedule changed during the school year without the employee's
written consent and the employee's required daily work hours may
not be changed to prevent the payment of time and one-half wages or
the employment of another employee.
(j) The minimum hourly rate of pay for extra duty assignments
as defined in section eight-b of this article shall be is no less
than one seventh of the employee's daily total salary for each hour
the employee is involved in performing the assignment and paid
entirely from local funds. Provided, That An alternative minimum hourly rate of pay for performing extra duty assignments within a
particular category of employment may be used if the alternate
hourly rate of pay is approved both by the county board and by the
affirmative vote of a two-thirds majority of the regular full-time
employees within that classification category of employment within
that county. Provided, however, That The vote shall be by secret
ballot if requested by a service personnel employee within that
classification category within that county. The salary for any
fraction of an hour the employee is involved in performing the
assignment shall be is prorated accordingly. When performing extra
duty assignments, employees who are regularly employed on a
one-half day salary basis shall receive the same hourly extra duty
assignment pay computed as though the employee were employed on a
full-day salary basis.
(k) The minimum pay for any service personnel employees
engaged in the removal of asbestos material or related duties
required for asbestos removal shall be is their regular total daily
rate of pay and may be no less than an additional three dollars per
hour or no less than five dollars per hour for service personnel
supervising asbestos removal responsibilities for each hour these
employees are involved in asbestos related duties. Related duties
required for asbestos removal include, but are not limited to,
travel, preparation of the work site, removal of asbestos,
decontamination of the work site, placing and removal of removing
equipment and removal of structures from the site. If any member
of an asbestos crew is engaged in asbestos related duties outside of the employee's regular employment county, the daily rate of pay
shall be is no less than the minimum amount as established in the
employee's regular employment county for asbestos removal and an
additional thirty dollars per each day the employee is engaged in
asbestos removal and related duties. The additional pay for
asbestos removal and related duties shall be is payable entirely
from county funds. Before service personnel employees may be used
in the removal of asbestos material or related duties, they shall
have completed a federal Environmental Protection Act approved
training program and be licensed. The employer shall provide all
necessary protective equipment and maintain all records required by
the Environmental Protection Act.
(l) For the purpose of qualifying for additional pay as
provided in section eight, article five of this chapter, an aide
shall be is considered to be exercising the authority of a
supervisory aide and control over pupils if the aide is required to
supervise, control, direct, monitor, escort or render service to a
child or children when not under the direct supervision of
certified professional personnel within the classroom, library,
hallway, lunchroom, gymnasium, school building, school grounds or
wherever supervision is required. For purposes of this section,
"under the direct supervision of certified professional personnel"
means that a certified professional personnel person is present,
with and accompanying the aide.
§18A-4-8b. Seniority rights for school service personnel.
(a) A county board shall make decisions affecting promotions and the filling of any service personnel positions of employment or
jobs occurring throughout the school year that are to be performed
by service personnel as provided in section eight of this article,
on the basis of seniority, qualifications and evaluation of past
service.
(b) Qualifications means that the applicant holds a
classification title in his or her category of employment as
provided in this section and shall be is given first opportunity
for promotion and filling vacancies. Other employees then shall be
considered and shall qualify by meeting the definition of the job
title that relates to the promotion or vacancy, as defined in
section eight of this article. that relates to the promotion or
vacancy. If requested by the employee, the county board shall show
valid cause why a service person with the most seniority is not
promoted or employed in the position for which he or she applies.
Qualified applicants shall be considered in the following order:
(1) Regularly employed service personnel who hold a
classification title within the classification category of the
vacancy;
(2) Service personnel who have held a classification title
within the classification category of the vacancy whose employment
has been discontinued in accordance with this section;
(3)Professional personnel who held temporary service personnel
jobs or positions prior to June 9, one thousand nine hundred
eighty-two, and who apply only for these temporary jobs or
positions Regularly employed service personnel who do not hold a classification title within the classification category of vacancy;
(4) Service personnel who have not held a classification title
within the classification category of the vacancy and whose
employment has been discontinued in accordance with this section;
(4) (5) Substitute service personnel who hold a classification
title within the classification category of the vacancy; and
(6) Substitute service personnel who do not hold a
classification title within the classification category of the
vacancy; and
(5) (7) New service personnel.
(c) The county board may not prohibit a service person from
retaining or continuing his or her employment in any positions or
jobs held prior to the effective date of this section and
thereafter.
(d) A promotion is defined as means any change in employment
that the service person considers to improve his or her working
circumstance within the classification category of employment.
(1) A promotion includes a transfer to another classification
category or place of employment if the position is not filled by an
employee who holds a title within that classification category of
employment.
(2) Each class title listed in section eight of this article
is considered a separate classification category of employment for
service personnel, except for those class titles having Roman
numeral designations, which shall be are considered a single
classification of employment:
(A) The cafeteria manager class title is included in the same
classification category as cooks;
(B) The executive secretary class title is included in the
same classification category as secretaries;
(C) Paraprofessional, autism mentor and braille or sign
language specialist class titles are included in the same
classification category as aides; and
(D) The mechanic assistant and chief mechanic class titles are
included in the same classification category as mechanics.
(3) The assignment of an aide to a particular position within
a school is based on seniority within the aide classification
category if the aide is qualified for the position.
(4) Assignment of a custodian to work shifts in a school or
work site is based on seniority within the custodian classification
category.
(e) For purposes of determining seniority under this section
an a service person's seniority begins on the date that he or she
enters into the assigned duties.
(f) Extra-duty assignments. --
(1) For the purpose of this section, "extra-duty assignments"
are defined as irregular jobs that occur assignment" means an
irregular job that occurs periodically or occasionally such as, but
not limited to, field trips, athletic events, proms, banquets and
band festival trips.
(2) Notwithstanding any other provisions of this chapter to
the contrary, decisions affecting service personnel with respect to extra-duty assignments shall be are made in the following manner:
(A) A service person with the greatest length of service time
in a particular category of employment shall be is given priority
in accepting extra duty assignments, followed by other fellow
employees on a rotating basis according to the length of their
service time until all such employees have had an opportunity to
perform similar assignments. The cycle then shall be is repeated.
(B) An alternative procedure for making extra-duty assignments
within a particular classification category of employment may be
used if the alternative procedure is approved both by the county
board and by an affirmative vote of two thirds of the employees
within that classification category of employment.
(g) County boards shall post and date notices of all job
vacancies of established existing or newly created positions in
conspicuous places for all school service personnel to observe for
at least five working days.
(1) Posting locations shall include any website maintained by
or available for the use of the county board.
(2) Notice of a job vacancy shall include the job description,
the period of employment, the amount of pay and any benefits and
other information that is helpful to prospective applicants to
understand the particulars of the job. Job postings for vacancies
made pursuant to this section shall be written so as to ensure that
the largest possible pool of qualified applicants may apply. Job
postings may not require criteria which are not necessary for the
successful performance of the job and may not be written with the intent to favor a specific applicant.
(3) After the five-day minimum posting period, all vacancies
shall be filled within twenty working days from the posting date
notice of any job vacancies of established existing or newly
created positions.
(4) The county board shall notify any person who has applied
for a job posted pursuant to this section of the status of his or
her application as soon as possible after the county board makes a
hiring decision regarding the posted position.
(h) All decisions by county boards concerning reduction in
work force of service personnel shall be made on the basis of
seniority, as provided in this section.
(i) The seniority of any a service person shall be is
determined on the basis of the length of time the employee has been
employed by the county board within a particular job
classification. For the purpose of establishing seniority for a
preferred recall list as provided in this section, when a service
person who has been employed in one or more classifications, the
seniority retains the seniority accrued in each previous
classification. is retained by the employee.
(j) If a county board is required to reduce the number of
service personnel within a particular job classification, the
following conditions apply:
(1) The employee with the least amount of seniority within
that classification or grades of classification shall be is
properly released and employed in a different grade of that classification if there is a job vacancy;
(2) If there is no job vacancy for employment within that
classification or grades of classification, the service person
shall be is employed in any other job classification which he or
she previously held with the county board if there is a vacancy and
shall retain retains any seniority accrued in the job
classification or grade of classification.
(k) Prior to August 1, After a reduction in force or transfer
is approved, but prior to August 1, (1) If the a county board in
its sole and exclusive judgment determines may determine that the
reason for any particular reduction in force or transfer no longer
exists.
(1) If the board makes this determination, it shall rescind
the reduction in force or transfer and notify the affected employee
in writing of the right to be restored to his or her former
position of employment.
(2) Within five days of being notified, The affected employee
shall notify the county board of his or her intent to return to the
former position of employment within five days of being notified or
lose the right of restoration to be restored to the former
position. terminates.
(3) The county board shall may not rescind the reduction in
force of an employee until all service personnel with more
seniority in the classification category on the preferred recall
list have been offered the opportunity for recall to regular
employment as provided in this section.
(4) If there are insufficient vacant positions to permit
reemployment of all more senior employees on the preferred recall
list within the classification category of the service person who
was subject to reduction in force, the position of the released
service person shall be posted and filled in accordance with this
section.
(l) If two or more service persons accumulate identical
seniority, the priority shall be is determined by a random
selection system established by the employees and approved by the
county board.
(m) All service personnel whose seniority with the county
board is insufficient to allow their retention by the county board
during a reduction in work force shall be are placed upon a
preferred recall list and shall be recalled to employment by the
county board on the basis of seniority.
(n) A service person placed upon the preferred recall list
shall be recalled to any position openings by the county board
within the classification(s) where he or she had previously been
employed, or to any lateral position for which the service person
is qualified or to a lateral area for which a service person has
certification and/or licensure.
(o) A service person on the preferred recall list shall does
not forfeit the right to recall by the county board if compelling
reasons require him or her to refuse an offer of reemployment by
the county board.
(p) The county board shall notify all service personnel on the preferred recall list of all position openings that exist from time
to time. The notice shall be sent by certified mail to the last
known address of the service person. Each service person shall
notify the county board of any change of address.
(q) No position openings may be filled by the county board,
whether temporary or permanent, until all service personnel on the
preferred recall list have been properly notified of existing
vacancies and have been given an opportunity to accept
reemployment.
(r) A service person released from employment for lack of need
as provided in sections six and eight-a, article two of this
chapter shall be is accorded preferred recall status on July 1 of
the succeeding school year if the he or she has not been reemployed
as a regular employee.
(s) A county board failing to comply with the provisions of
this article may be compelled to do so by mandamus and is liable to
any party prevailing against the board for court costs and the
prevailing party's reasonable attorney fee, as determined and
established by the court.
(1) A service person denied promotion or employment in
violation of this section shall be awarded the job, pay and any
applicable benefits retroactively to the date of the violation and
shall be paid entirely from local funds.
(2) The county board is liable to any party prevailing against
the board for any court reporter costs including copies of
transcripts.
§18A-4-17. Health and other facility employee salaries.
(a) The minimum salary scale for professional personnel and
service personnel employed by the state department of education to
provide education and support services to residents of state
department of health and human resources facilities, corrections
facilities providing services to juvenile and youthful offenders,
and in the West Virginia schools for the deaf and the blind and in
public community and technical colleges providing middle college
services is the same as set forth in sections two, three and eight-
a of this article. Additionally, those personnel shall receive the
equivalent of salary supplements paid to professional and service
personnel employed by the county board of education in the county
wherein each facility is located, as set forth in sections five-a
and five-b of this article. Professional personnel and service
personnel in these facilities who earn advanced classification of
training after the effective date of this section shall be paid the
advanced salary from the date the classification of training is
earned. The professional personnel shall be certified, licensed or
trained, and shall meet other eligibility classifications as may be
required by the provisions of this chapter and by state board
regulations for comparable instructional personnel who are employed
by county boards. of education The professional personnel shall be
paid at the equivalent rate of pay of teachers as set forth in
section two of this article, but outside the public support plan,
plus the equivalent of the salary supplement paid to teachers
employed by the county board of education in the county in which each facility is located, as set forth in section five-a of this
article.
(b) Professional personnel employed by the department to
provide educational service education services to residents in
state department of health and human resources facilities,
corrections facilities providing services to juvenile and youthful
offenders, or in the West Virginia schools for the deaf and the
blind or in public community and technical colleges providing
middle college services shall be are afforded all the rights,
privileges and benefits established for the professional personnel
under this article, subject to the following:
(1) Provided, That The benefits shall apply only within the
facility at which the professional personnel are employed;
(2) Provided, however, That The benefits shall exclude
salaries unless explicitly provided for under this or other
sections of this article; and
(3) Provided further, That Seniority for the professional
personnel shall be is determined on the basis of the length of time
that the employee has been professionally employed at the facility,
regardless of which state agency was the actual employer.
(c) Nothing contained in this section shall be construed to
mean that Professional personnel and service personnel employed by
the department of education to provide educational education and
support services to residents in state department of health and
human resources facilities, corrections facilities providing
services to juvenile and youthful offenders, and the West Virginia schools for the deaf and the blind and in public community and
technical colleges providing middle college services are other than
state employees.
(d) Additional seniority provisions.
(1) Notwithstanding any other provision of this section to the
contrary, professional and service personnel employed in an
educational facility operated by the West Virginia department of
education shall accrue seniority at that facility on the basis of
the length of time the employee has been employed at the facility.
Any Professional or and service personnel whose employment at the
facility was preceded immediately by employment with the county
board previously providing education services at the facility or
whose employment contract was with the county board previously
providing education services at the facility:
(A) shall retain Retains any seniority accrued during
employment by the county board;
(B) shall accrue Accrues seniority as a regular employee with
the county board during employment at the facility;
(C) shall attain Attains continuing contract status in
accordance with section two, article two, chapter eighteen-a of
this code with both the county and the facility if the sum of the
years employed by the county and the facility equals the statutory
number required for continuing contract status; and
(D) shall retain and continue Retains and continues to accrue
county and facility seniority in the event of reemployment by the
county as a result of direct transfer from the facility or recall from the preferred list.
(2) Reductions in work force in the facility or employment by
the facility or county board shall be are made in accordance with
the provisions of sections seven-a and eight-b article four,
chapter eighteen-a of this code: Provided, That of this chapter.
Only years of employment within the facility shall be are
considered for purposes of reduction in force within the facility.
(3) The seniority conferred in this section applies
retroactively to all affected professional and service personnel,
but the rights incidental to the seniority shall commence as of on
the effective date of this section.
(4) Amendments made to this section during the 2009 regular
session of the Legislature do not abrogate any rights, privileges
or benefits bestowed under previous enactments of this section.
The bill (Eng. Com. Sub. for H. B. No. 3146), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, 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)--32.
The nays were: Barnes and Fanning--2.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3146) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--31.
The nays were: Barnes, Fanning and Sypolt--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3146) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3146--A Bill to amend and
reenact §18A-4-8 of the Code of West Virginia, 1931, as amended; to
amend and reenact §18A-4-8a of said code; to amend and reenact
§18A-4-8b of said code; and to amend and reenact §18A-4-17 of said
code, all relating to seniority rights for school service personnel
generally; creating a new service personnel definition and
assigning a pay grade; revising criteria for consideration of
applicants; providing for assignment based on seniority in certain
circumstances in certain classifications; specifying certain
rights, privileges and benefits of certain professional and service personnel providing middle college services in public community and
technical colleges; and making technical changes.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3155, Relating to the renewal of the West
Virginia Small Business Linked Deposit Program.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Economic Development, was reported by the Clerk and adopted:
On page three, section four, line twenty-seven, by striking
out the words "supervision and".
The bill (Eng. H. B. No. 3155), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3155) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3155) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3192, Requiring reports to the Governor
from state agencies to be made available electronically via the
internet.
Having been removed from the Senate second reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 3194, Making it a
misdemeanor to knowingly file false information with the Secretary
of State.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
§31B-1-114. Penalty for signing false document.
Any person who signs a document required to be filed with the
Secretary of State by this article which he or she knows is false
in any material respect is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000 or confined
in jail not more than one year, or both fined and confined.
The bill (Eng. Com. Sub. for H. B. No. 3194), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3194) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3194) 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 House Bill No. 3240, Giving the
Commissioner of Motor Vehicles authority to approve all-terrain
vehicle rider safety awareness courses.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3275, Changing the date
through which governmental entities are required to purchase
workers' compensation.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3295, Relating to the West Virginia State
Treasurer's Office.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3340, Relating to entry into a data state
compact among the Higher Education Policy Commission, Council for Community and Technical College Education and State Board of
Education.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-10. State data sharing compact; legislative intent;
findings; definitions.
(a) The intent of the Legislature in enacting this section is
to direct the commission, council and State Board of Education to
enter into a state compact, consistent with the provisions of
section six of this article, on or before July 1, 2009, to develop
and maintain a longitudinal education data system and to share
educational information.
(b) The Legislature makes the following findings:
(1) Sound data collection, reporting and analysis are critical
to building an education system capable of ensuring that all West
Virginia students are adequately prepared for college and the
global workforce. Elementary schools, middle schools, secondary
schools and higher education institutions can improve instructional
and educational decision-making using data that are collected and
made available to them.
(2) State education policymaking benefits from partnerships between state education agencies and entities with expertise in
education research. It is beneficial for West Virginia to
establish systems and processes that permit qualified researchers
to assist with state evaluation and research functions in a manner
that is consistent with privacy protection laws.
(3) West Virginia is committed to establishing and maintaining
a longitudinal student unit record data system that educators and
policymakers can use to analyze and assess student progress
beginning with early learning programs and continuing through post-
secondary education and into employment. The commission, council
and State Board of Education have designed, built and deployed some
of the fundamental components of a longitudinal data system and
have engaged in extensive efforts to link and use available
education data effectively. Now, it is necessary to integrate and
manage the various education data components in a cooperative
manner to establish a data-driven, decision-making environment for
this state's education system.
(4) Students will achieve improved learning outcomes because
of the longitudinal data system established through the state
compact mandated by this section.
(6) State use and management of education data shall be in
accordance with all legal requirements protecting student privacy
and shall protect personal information from intentional or
accidental release to unauthorized persons and from intentional or
accidental use for unauthorized purposes.
(c) Definitions:
(1) "Longitudinal data system" means a student unit record
data system that links student records beginning with early
learning programs and continuing through post-secondary education,
entry into the workforce and beyond. The system may consist of
separate student unit record systems integrated through agreement
and data transfer mechanisms.
(2) "Privacy protection laws" means the federal Family
Educational Rights and Privacy Act of 1974 (20 U.S.C. 1232g) and
any other state or federal laws relating to the confidentiality and
protection of personally identifiable information.
(3) "Research organization" means a governmental entity,
institution of higher education, public policy organization or
other person or entity conducting educational research that meets
the following conditions:
(i) Qualified to perform educational research and protect the
privacy of student data;
(ii) Seeks to perform research for a non-commercial purpose
authorized by privacy protection laws; and
(iii) Agrees to perform the research pursuant to a written
agreement meeting the requirements of privacy protection laws and
best research practices.
(d) The state data-sharing compact entered into by the
commission, council and State Board of Education shall contain the
following:
(1) A plan to establish and maintain a longitudinal data
system that links early learning, elementary, middle and secondary school student unit records with higher education institution
student unit records;
(2) A plan to establish a data warehouse that integrates data
from multiple student unit record systems and supports all of the
uses and functions of the longitudinal data system;
(3) A list of areas for collaborative research and a
preliminary plan for conducting that research;
(4) A system for entering into data sharing arrangements with
each other and with research organizations consistent with
subsection (f) of this section; and
(5) A provision that allows another party to the compact to
review any draft report or study generated using that party's data
at least ten days before the report or study is released publicly.
During that ten day period, each party shall be given the
opportunity to submit comments regarding the accuracy, conclusions
and recommendations of the report or study.
(e) To facilitate implementation of the requirements of this
section:
(1) The commission, council and State Board of Education are
authorized to disclose data to the longitudinal data system and to
each other consistent with the purposes of this section;
(2) With the assistance of the State Board of Education, the
commission, council and state institutions of higher education
shall collect the State Board of Education's unique identifier for
all students who have attended public schools in West Virginia to
facilitate better matching of student unit record data.
(3) The commission, council and State Board of Education shall
collect, use, maintain, disclose and share data in accordance with
personal privacy laws and shall develop security measures and
procedures that protect personal information from intentional or
accidental release to unauthorized persons and from intentional or
accidental use for unauthorized purposes.
(f) A data sharing arrangement entered into with a research
organization pursuant to this section shall meet the following
criteria:
(1) Permitted by and undertaken in accordance with privacy
protection laws;
(2) Receives prior approval from the State Superintendent of
Schools or designee, the Chancellor for Higher Education or
designee, and the Chancellor for Community and Technical College
Education or designee, as appropriate, if data from that entity are
being utilized in the research;
(3) Prohibits the personal identification of any person by
individuals other than authorized representatives of the research
organization who have legitimate interests in the information;
(4) Ensures the destruction or return of the data when no
longer needed for the authorized purposes under the data sharing
arrangement;
(5) Performed pursuant to a written agreement with the
research organization that does the following:
(A) Specifies the purpose, scope and duration of the data
sharing arrangement;
(B) Requires the recipient of the data to use personally
identifiable information from education records only to meet the
purpose or purposes of the data sharing arrangement stated in the
written agreement;
(C) Describes specific data access, use and security
restrictions that the recipient will undertake; and
(D) Contains such other terms and provisions as the
commission, council and State Board of Education, as appropriate,
consider necessary or appropriate.
(g) As a condition of participating in state-level financial
aid programs provided for in chapter eighteen-c of this code, the
commission may require non-public institutions of higher education
to provide data for the longitudinal data system and data
warehouse.
The bill (Eng. H. B. No. 3340), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, 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: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3340) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3340) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, 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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3340) takes effect from passage.
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.
Eng. Com. Sub. for House Bill No. 2916, Relating to the
Emergency Medical Services Act.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Palumbo, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 9th day of April, 2009, 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. No. 263), Disclosing certain inmates'
personal communications.
(Com. Sub. for S. B. No. 307), Creating Maternal Screening
Act.
(Com. Sub. for S. B. No. 321), Modifying certificate of need
process.
(Com. Sub. for S. B. No. 341), Transferring juvenile justice
database administration to Supreme Court.
(S. B. No. 346), Correcting code reference related to bear
tagging.
(S. B. No. 436), Updating terminology relating to surface
mining reporting requirements.
(Com. Sub. for S. B. No. 453), Relating to Public Service
Commission service of decisions.
(Com. Sub. for H. B. No. 2225), Authorizing the Department of
Education and the Arts to Promulgate Legislative Rules.
(Com. Sub. for H. B. No. 2305), Revising appointment and
compensation provisions of the Supreme Court Clerk and his or her
staff.
(H. B. No. 2474), Exempting land-based finfish aquaculture
facilities from certain sludge management requirements.
(H. B. No. 2652), Repealing the Tree Fruit Industry
Self-Improvement Act of 1984.
(Com. Sub. for H. B. No. 2702), Relating to the Deputy Sheriff
Retirement System Act.
(Com. Sub. for H. B. No. 2703), Relating to the State Teachers
Retirement System.
(Com. Sub. for H. B. No. 2904), Authorizing rules for higher
education.
(H. B. No. 3066), Clarifying the supervision requirements for
elevator apprentices under elevator safety.
(Com. Sub. for H. B. No. 3076), Relating to the regulation and
operation of cranes.
And,
(H. B. No. 3189), Adding members to the Capitol Building
Commission.
Respectfully submitted,
Corey Palumbo,
Chair, Senate Committee.
Danny Wells,
Chair, House Committee.
Senator Prezioso, from 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
Senate Concurrent Resolution No. 10, Requesting Joint
Committee on Government and Finance study Department of Health and
Human Resources employees' home visit safety issues.
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,
Roman W. Prezioso, Jr.,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 27, Requesting Joint
Committee on Government and Finance study Department of
Environmental Protection staff pay rates.
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,
Walt Helmick,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Green, from the Committee on Energy, Industry and
Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under
consideration
Senate Concurrent Resolution No. 51, Requesting Joint
Committee on Government and Finance study use of alternative fuels
and biofuels.
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,
Mike Green,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2309, Updating the law
governing the practice of occupational therapy.
With amendments from the Committee on Government Organization
pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Government Organization on April 7,
2009;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on the Judiciary.
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
Eng. Com. Sub. for House Bill No. 2412, Providing certain
county commissions with authority to regulate the location of
businesses offering exotic entertainment.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 7, 2009;
And reports the same back with the recommendation that it do
pass, as amended.
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
Eng. House Bill No. 2485, Allowing pharmacy interns to vend
pseudoephedrine and other chemical precursors of methamphetamine.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 8, 2009;
And reports the same back with the recommendation that it do
pass, as amended.
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
Eng. Com. Sub. for House Bill No. 2528, Updating the
regulation of the practice of forestry.
With amendments from the Committee on Government Organization
pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 7, 2009;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on the Judiciary.
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
Eng. Com. Sub. for House Bill No. 2531, Updating the
regulation of the practice of barbers and cosmetologists.
With an amendment from the Committee on Government
Organization pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 7, 2009;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on the Judiciary.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee the Judiciary, submitted
the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2532, Creating licensure for
Marriage and Family Therapists.
With an amendment from the Committee on Government
Organization pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 7, 2009;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on the Judiciary.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Chafin, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2532) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 31. COUNSELORS.
§30-31-1. License required.
It is unlawful for any person to practice or offer to practice
professional counseling or marriage and family therapy in this
state without a license issued under the provisions of this
article, or advertise or use any title or description tending to
convey the impression that the person is a licensed professional
counselor or a licensed marriage and family therapist unless the
person has been licensed under the provisions of this article, and
the license has not expired, been suspended, revoked or exempted.
§30-31-2. Applicable law.
The practices of professional counseling and marriage and
family therapy, and the Board of Examiners of Counseling are
subject to the provisions of article one of this chapter, the
provisions of this article and any rules promulgated hereunder.
§30-31-3. Definitions.
As used in this article, the following words and terms have
the following meanings, unless the context clearly indicates
otherwise:
(a) "Applicant" means a person making an application for a
license or renewal under the provisions of this article.
(b) "Board" means the West Virginia Board of Examiners in
Counseling.
(c) "Clinical counseling procedures" means an approach to
counseling that emphasizes the counselor's role in systematically
assisting clients through all of the following including, but are
not limited to, observing, assessing and analyzing background and
current information; utilizing assessment techniques useful in
appraising aptitudes, abilities, achievements, interests or
attitudes; diagnosing; and developing a treatment plan. The goal
of these procedures is the prevention or elimination of
symptomatic, maladaptive, or undesired behavior, cognitions or
emotions in order to integrate a wellness, preventative, pathology
and multicultural model of human behavior to assist an individual,
couple, family, group of individuals, organization, institution or
community to achieve mental, emotional, physical, social, moral,
educational, spiritual, vocational or career development and adjustment through the life span of the individual, couple, family,
group of individuals, organization, institution or community.
(d) "Licensed professional counselor" means a person licensed
under the provisions of this article to practice professional
counseling.
(e) "Licensee" means a person holding a license issued under
the provisions of this article.
(f) "Licensed marriage and family therapist" means a person
licensed under the provisions of this article to practice marriage
and family therapy.
(g) "Marriage and family therapy" means the diagnosis and
treatment of mental and emotional disorders whether cognitive,
affective or behavioral, specifically within the context of
marriage and family systems, that involve the professional
application of theories and techniques to individuals, couples and
families, singly or in groups.
(h) "Professional counseling" means the assessment, diagnosis,
treatment and prevention of mental, emotional or addiction
disorders through the application of clinical counseling
procedures. Professional counseling includes the use of
psychotherapy, assessment instruments, counseling, consultation,
treatment planning, and supervision in the delivery of services to
individuals, couples, families and groups.
§30-31-4. Board of Examiners in Counseling.
(a) The West Virginia Board of Examiners in Counseling is
continued. The members of the board in office on July 1, 2009, shall, unless sooner removed, continue to serve until their
respective terms expire and until their successors have been
appointed and qualified.
(b) To be effective on July 1, 2009, the Governor shall
appoint, by and with the advice and consent of the Senate, a
licensed marriage and family therapist from a list of three
nominees submitted by The West Virginia Association of Marriage and
Family Therapy, to replace the citizen member whose term ends on
June 30, 2009, and for any vacancy thereafter.
(c) Commencing July 1, 2009, the board shall consist of the
following seven members:
(1) Two licensed professional counselors engaged in the
teaching of counseling at an accredited institution of higher
education;
(2) Three licensed professional counselors;
(3) One licensed marriage and family therapist; and
(4) One citizen, who is not licensed under the provisions of
this article and who does not perform any services related to the
practice of the professions regulated under the provisions of this
article.
(d) Each member shall be appointed by the Governor by and with
the advice and consent of the Senate. The term is for five years.
(e) A member may not serve more than two consecutive full
terms. A member having served two consecutive full terms may not
be appointed for one year after completion of his or her second
full term. A member may continue to serve until a successor has been appointed and has qualified.
(f) Each licensed member shall maintain an active license with
the board: Provided, That the initial marriage and family
therapist appointed to the board must qualify for licensure under
the provisions of section nine of this article.
(g) Each member of the board shall be a resident of West
Virginia during the appointment term.
(h) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant and the appointment shall be made within sixty days of the
vacancy.
(i) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(j) A member of the board immediately and automatically
forfeits membership to the board if his or her license to practice
is suspended or revoked, is convicted of a felony under the laws of
any jurisdiction, or becomes a nonresident of this state.
(k) The board shall elect annually one of its members as
chairperson who serves at the will of the board.
(l) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(m) A majority of the members of the board shall constitute a
quorum.
(n) The board shall hold at least two annual meetings. Other
meetings shall be held at the call of the chairperson or upon the written request of two members, at the time and place as designated
in the call or request.
(o) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-31-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer
examinations;
(2) Establish requirements for licenses;
(3) Establish procedures for submitting, approving and
rejecting applications for a license;
(4) Determine the qualifications of any applicant for a
license;
(5) Prepare, conduct, administer and grade written, oral or
written and oral examinations for a license;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examination and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix
the compensation of the executive director;
(9) Maintain an office and hire, discharge, establish the job requirements and fix the compensation of employees and contracted
employees necessary to enforce the provisions of this article;
(10) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
board;
(11) Establish a fee schedule;
(12) Issue, renew, deny, suspend, revoke or reinstate a
license;
(13) Conduct disciplinary hearings of persons regulated by the
board;
(14) Determine disciplinary action and issue orders;
(15) Institute appropriate legal action for the enforcement of
the provisions of this article;
(16) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(17) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(18) Establish the continuing education requirements for
licensees;
(19) Propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article; and
(20) Take all other actions necessary and proper to effectuate
the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this
state; and
(3) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions.
§30-31-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter
twenty-nine-a of this code, to implement the provisions of this
article, including:
(1) Standards and requirements for licenses to practice
professional counseling and marriage and family therapy;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or
administer examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examination;
(6) Standards for approval of courses;
(7) Procedures for the issuance and renewal of a license;
(8) A fee schedule;
(9) Continuing education requirements for licensees;
(10) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of a licensee;
(11) Requirements to reinstate a revoked license;
(12) Specific master's and doctoral degree programs considered
to be equivalent to a master's or doctoral degree program required under this article;
(13) The nature of supervised professional experience approved
by the board for the purposes of licensure of this article;
(14) A code of ethics; and
(15) Any other rules necessary to effectuate the provisions of
this article.
(b) All of the board's rules in effect on July 1, 2009, shall
remain in effect until they are amended or repealed, and references
to provisions of former enactments of this article are interpreted
to mean provisions of this article.
§30-31-7. Fees; special revenue account.
(a) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "Board of
Examiners in Counseling Fund". The fund is used by the board for
the administration of this article. Except as may be provided in
article one of this chapter, the board retains the amount in the
special revenue account from year to year. No compensation or
expense incurred under this article is a charge against the General
Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this
article, shall be deposited into the General Revenue Fund of the
State Treasury.
§30-31-8. Requirements for license to practice counseling.
(a) To be eligible for a license to practice professional
counseling, an applicant must:
(1) Be of good moral character;
(2) Be at least eighteen years of age;
(3) Be a citizen of the United States or be eligible for
employment in the United States;
(4) Pay the applicable fee;
(5) (A) (i) Have earned a master's degree in an accredited
counseling program or in a field closely related to an accredited
counseling program as determined by the board, or have received
training equivalent to such degree as may be determined by the
board; and
(ii) Have at least two years of supervised professional
experience in counseling of such a nature as is designated by the
board after earning a master's degree or equivalent; or
(B) (i) Have earned a doctorate degree in an accredited
counseling program or in a field closely related to an accredited
counseling program as determined by the board, or have received
training equivalent to such degree as may be determined by the
board; and
(ii) Have at least one year of supervised professional
experience in counseling of such a nature as is designated by the
board after earning a doctorate degree or equivalent;
(6) Have passed a standardized national certification
examination in counseling approved by the board;
(7) Not have been convicted of a felony or crime involving
moral turpitude under the laws of any jurisdiction:
(A) If the applicant has never been convicted of a felony or a crime involving moral turpitude, the applicant shall submit
letters of recommendation from three persons not related to the
applicant and a sworn statement from the applicant stating that he
or she has never been convicted of a felony or a crime involving
moral turpitude; or
(B) If the applicant has been convicted of a felony or a crime
involving moral turpitude, it is a rebuttable presumption that the
applicant is unfit for licensure unless he or she submits competent
evidence of sufficient rehabilitation and present fitness to
perform the duties of a licensed professional counselor as may be
established by the production of:
(i) Documentary evidence including a copy of the relevant
release or discharge order, evidence showing compliance with all
conditions of probation or parole, evidence showing that at least
one year has elapsed since release or discharge without subsequent
conviction, and letters of reference from three persons who have
been in contact with the applicant since his or her release or
discharge; and
(ii) Any collateral evidence and testimony as may be requested
by the board which shows the nature and seriousness of the crime,
the circumstances relative to the crime or crimes committed and any
mitigating circumstances or social conditions surrounding the crime
or crimes and any other evidence necessary for the board to judge
present fitness for licensure or whether licensure will enhance the
likelihood that the applicant will commit the same or similar
offenses;
(8) Not be an alcohol or drug abuser as these terms are
defined in section eleven, article one-a, chapter twenty-seven of
this code: Provided, That an applicant who has had at least two
continuous years of uninterrupted sobriety in an active recovery
process, which may, in the discretion of the board, be evidenced by
participation in a twelve-step program or other similar group or
process, may be considered; and
(9) Has fulfilled any other requirement specified by the
board.
(b) A person who holds a license or other authorization to
practice counseling issued by another state, the qualifications for
which license or other authorization are determined by the board to
be at least substantially equivalent to the license requirements in
this article, is eligible for licensure.
(c) A person seeking licensure under the provisions of this
section shall submit an application on a form prescribed by the
board and pay all applicable fees.
(d) A person who has been continually licensed under this
article since 1987, pursuant to prior enactments permitting waiver
of certain examination and other requirements, is eligible for
renewal under the provisions of this article.
(e) A license to practice professional counseling issued by
the board prior to July 1, 2009, shall for all purposes be
considered a license issued under this article: Provided, That a
person holding a license issued prior to July 1, 2009, must renew
the license pursuant to the provisions of this article.
§30-31-9. Requirements for a license to practice marriage and
family therapy.
(a) To be eligible for a license to practice marriage and
family therapy, an applicant must:
(1) Be of good moral character;
(2) Be at least eighteen years of age;
(3) Be a citizen of the United States or be eligible for
employment in the United States;
(4) Pay the applicable fee;
(5) (A) (i) Have earned a master's in marriage and family
therapy from a program accredited by the Commission on
Accreditation for Marriage and Family Therapy Education, Council
for Accreditation of Counseling and Related Education Programs or
a comparable accrediting body as approved by the board or in a
field closely related to an accredited marriage and family therapy
program as determined by the board, or have received training
equivalent to such degree as may be determined by the board; and
(ii) Have at least two years of supervised professional
experience in marriage and family therapy of such a nature as is
designated by the board after earning a master's or equivalent.
(B) (i) Have earned a doctorate degree in marriage and family
therapy from a program accredited by the Commission on
Accreditation for Marriage and Family Therapy Education, the
Council for Accreditation of Counseling and Related Education
Programs, or a comparable accrediting body as approved by the board
or in a field closely related to an accredited marriage and family therapy program as determined by the board, or have received
training equivalent to such degree as may be determined by the
board; and
(ii) Have at least one year of supervised professional
experience in marriage and family therapy of such a nature as is
designated by the board after earning a doctorate or equivalent.
(6) Have passed a standardized national certification
examination in marriage and family therapy as approved by the
board.
(7) Not have been convicted of a felony or crime involving
moral turpitude under the laws of any jurisdiction:
(A) If the applicant has never been convicted of a felony or
a crime involving moral turpitude, the applicant shall submit
letters of recommendation from three persons not related to the
applicant and a sworn statement from the applicant stating that he
or she has never been convicted of a felony or a crime involving
moral turpitude; or
(B) If the applicant has been convicted of a felony or a crime
involving moral turpitude, it is a rebuttable presumption that the
applicant is unfit for licensure unless he or she submits competent
evidence of sufficient rehabilitation and present fitness to
perform the duties of a licensed professional counselor as may be
established by the production of:
(i) Documentary evidence including a copy of the relevant
release or discharge order, evidence showing compliance with all
conditions of probation or parole, evidence showing that at least one year has elapsed since release or discharge without subsequent
conviction, and letters of reference from three persons who have
been in contact with the applicant since his or her release or
discharge; and
(ii) Any collateral evidence and testimony as may be requested
by the board which shows the nature and seriousness of the crime,
the circumstances relative to the crime or crimes committed and any
mitigating circumstances or social conditions surrounding the crime
or crimes and any other evidence necessary for the board to judge
present fitness for licensure or whether licensure will enhance the
likelihood that the applicant will commit the same or similar
offenses;
(8) Not be an alcohol or drug abuser as these terms are
defined in section eleven, article one-a, chapter twenty-seven of
this code: Provided, That an applicant who has had at least two
continuous years of uninterrupted sobriety in an active recovery
process, which may, in the discretion of the board, be evidenced by
participation in a twelve-step program or other similar group or
process, may be considered; and
(9) Has fulfilled any other requirement specified by the
board.
(b) A person seeking licensure under the provisions of this
section shall submit an application on a form prescribed by the
board and pay all applicable fees.
(c) A person who is licensed for the five years prior to the
effective date of this section and has substantially similar qualifications as required by subdivision (1), (2), (3), (5)(A)(i),
(5)(B)(i), (6) and (7) of subsection (a) of this section is
eligible for a license to practice marriage and family therapy
until July 1, 2013, and is eligible for renewal under section ten.
§30-31-10. Renewal requirements.
(a) A licensed professional counselor and a licensed marriage
and family therapist shall annually or biennially renew his or her
license at a time determined by the board, by completing a form
prescribed by the board, paying the renewal fee and submitting any
other information required by the board.
(b) The board shall charge a fee for each renewal of a license
and a late fee for any renewal not properly completed and received
with the appropriate fee by the board at the appropriate date.
(c) The board shall require as a condition of renewal that
each licensee complete continuing education.
(d) The board may deny an application for renewal for any
reason which would justify the denial of an original application
for a license.
§30-31-11. Persons exempted from licensure.
(a) The following activities are exempt from the provisions of
this article:
(1) Teaching, lecturing or engaging in research in
professional counseling or marriage and family therapy so long as
such activities do not otherwise involve the practice of
professional counseling or marriage and family therapy directly
affecting the welfare of the person counseled;
(2) The official duties of persons employed as professional
counselors or marriage and family therapists by the State of West
Virginia or any of its departments, agencies, divisions, bureaus or
political subdivisions, counties, county boards of education,
regional education service agencies, municipalities or any other
facilities or programs established, supported or funded, in whole
or in part, by the governmental entity;
(3) The official duties of persons employed as professional
counselors or marriage and family therapists by any department,
agency, division or bureau of the United States of America;
(4) The official duties of persons serving as professional
counselors or marriage and family therapists, whether as volunteers
or for compensation or other personal gain, in any public or
private nonprofit corporations, organizations, associations or
charities;
(5) The official duties of persons who are employed by a
licensed professional counselor or licensed marriage and family
therapist, whose duties are supervised by a licensed professional
counselor or licensed marriage and family therapists and who
represent themselves by the title provisionally licensed counselor
or provisionally licensed marriage and family therapist, and do not
represent themselves as licensed professional counselors or
licensed marriage and family therapists as defined in this article;
(6) The activities of a student of professional counseling or
marriage and family therapy which are part of the prescribed course
of study at an accredited educational institution and are supervised by a licensed professional counselor, licensed marriage
and family therapist or by a teacher, instructor or professor of
counseling or marriage and family therapy acting within the
official duties or scope of activities exempted by this section; or
(7) The activities and services of qualified members of other
recognized professions such as physicians, psychologists,
psychoanalysts, social workers, lawyers, clergy, nurses or teachers
performing counseling or marriage and family therapy consistent
with the laws of this state, their training and any code of ethics
of their professions so long as such persons do not represent
themselves as licensed professional counselors or licensed marriage
and family therapists as defined by section three of this article.
(b) Nothing in the article requires licensing of the following
persons pursuant to this article:
(1) A school counselor who holds a school counseling
certificate issued by the West Virginia Department of Education and
who is engaged in counseling solely within the scope of his or her
employment with the department, a county board of education or a
regional education service agency; or
(2) A nonresident professional counselor or marriage and
family therapist who holds a license or other authorization to
engage in the practice of professional counseling or marriage and
family therapy issued by another state, the qualifications for
which in the opinion of the board are at least as stringent as
those provided in section eight and section nine of this article,
and who renders counseling services in this state for no more than thirty days in any calendar year.
(c) Nothing in this article permits a licensed professional
counselor or licensed marriage and family therapist to administer
or prescribe drugs or otherwise engage in the practice of medicine
as defined in articles three and fourteen of chapter thirty of this
code.
§30-31-12. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion based on credible
information, and shall upon the written complaint of any person
cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative
rules of the board.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee has violated any provision of subsection (g) of
this section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the
licensee has violated any provision of subsection (g) of this
section or rules promulgated pursuant to this article, the board
may enter into a consent decree or hold a hearing for the
suspension or revocation of the license or the imposition of
sanctions against the licensee. Any hearing shall be held in
accordance with the provisions of this article.
(e) Any member of the board or the executive director of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against any person regulated by the article.
(f) Any member of the board or its executive director may sign
a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license of, impose
probationary conditions upon or take disciplinary action against,
any licensee for any of the following reasons once a violation has
been proven by a preponderance of the evidence:
(1) Obtaining a license by fraud, misrepresentation or
concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct as defined by
legislative rule of the board;
(4) A violation of a lawful order or rule of the board;
(5) Having had a license or other authorization revoked or
suspended, other disciplinary action taken, or an application for
licensure or other authorization revoked or suspended by the proper
authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act which has endangered or is likely to
endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, effective July 15, 2009, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee to report to the board for periodic
interviews for a specified period of time; or
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-31-13. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law
judge, at the conclusion of a hearing he or she shall prepare a
proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the board so directs. The board may accept, reject or
modify the decision of the administrative law judge.
(d) Any member or the executive director of the board has the
authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee has
violated any provision of this article or the board's rules, a
formal written decision shall be prepared which contains findings
of fact, conclusions of law and a specific description of the
disciplinary actions imposed.
§30-31-14. Judicial review.
Any licensee adversely affected by a decision of the board
entered after a hearing may obtain judicial review of the decision
in accordance with section four, article five, chapter
twenty-nine-a of this code, and may appeal any ruling resulting
from judicial review in accordance with article six, chapter
twenty-nine-a of this code.
§30-31-15. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee has
committed a criminal offense under this article, the board may
bring the information to the attention of an appropriate
law-enforcement official.
(b) Effective July 15, 2009, a person violating section one of
this article is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $500 nor more than $1,000 or
confined in jail not more than six months, or both fined and
confined.
§30-31-16. Disclosure.
All information communicated to or acquired by a licensee while engaged in the practice of counseling or marriage and family
therapy with a client is privileged information and may not be
disclosed by the licensee except:
(a) With the written consent of the client, or in the case of
death or disability, with the written consent of a personal
representative or other person authorized to sue, or the
beneficiary of any insurance policy on the client's life, health or
physical condition;
(b) When a communication reveals the contemplation of an act
dangerous to the client or others; or
(c) When the client, or his or her personal representative,
waives the privilege by bringing charges against the licensee.
§30-31-17. Single act evidence of practice.
In any action brought or in any proceeding initiated under
this article, evidence of the commission of a single act prohibited
by this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general
course of conduct.
The bill (Eng. Com. Sub. for H. B. No. 2532), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule,
the yeas were: Boley,
Bowman, Browning, Chafin, 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, Williams, Yost and Tomblin
(Mr. President)--31.
The nays were: Barnes--1.
Absent: Caruth and White--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2532) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, 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, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: None.
Absent: Caruth and White--2.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2532) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2566, Expanding
applicability of increased penalties for crimes against certain
protected persons.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2566) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2701, Relating to an escape
of any person from the custody of the Division of Juvenile
Services.
With amendments from the Committee on Health and Human
Resources pending;
And has also amended same.
And reports the same back with the recommendation that it do
pass as last amended by the Committee on the Judiciary.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2701) contained in the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2832, Relating to critical
skills evaluations for students in grades three and eight.
With amendments from the Committee on Education pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 7, 2009;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
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
Eng. Com. Sub. for House Bill No. 2926, Establishing a
procedure for challenging a candidate's qualifications for elected
office.
With amendments from the Committee on Government Organization
pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 7, 2009;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on the Judiciary.
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
Eng. Com. Sub. for House Bill No. 2958, Increasing the fines
for a trespassing conviction pursuant to certain circumstances.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2958) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Eng. Com. Sub. for House Bill No. 2961, Adding two members to the institutional boards of governors of West Virginia University
and Marshall University based upon race, gender and ethnicity.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on Education.
At the request of Senator Plymale, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2961) was taken up
for immediate consideration, read a first time and ordered to
second reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3278, Relating to the life
and health insurance guaranty association.
With amendments from the Committee on Banking and Insurance
pending;
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 7, 2009;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Banking and Insurance to which
the bill was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 3336, Continuing early
intervention services to families with developmentally delayed
infants and toddlers but eliminating the cost-free provision.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 8, 2009;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Prezioso, from 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
House Concurrent Resolution No. 46, Requesting the Joint
Committee on Government and Finance to conduct a study on expanding
the scope of practice for optometrists.
And has amended same.
And reports the same back with the recommendation that it be
adopted, as amended; but under the original double committee
reference first be referred to the Committee on Rules.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules, with amendments from
the Committee on Health and Human Resources pending.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Oliverio, unanimous consent being
granted, it was ordered that the Journal show had Senator Oliverio
been present in the chamber on yesterday, Wednesday, April 8, 2009,
he would have voted "yea" on the passage of Engrossed Committee
Substitute for Senate Bill No. 153,
Engrossed Committee Substitute
for Senate Bill No. 370,
Engrossed Committee Substitute for Senate
Bill No. 405,
Engrossed Committee Substitute for Senate Bill No.
612,
Engrossed Committee Substitute for House Bill No. 2218,
Engrossed Committee Substitute for House Bill No. 2222,
Engrossed
Committee Substitute for House Bill No.
2407,
Engrossed Committee
Substitute for House Bill No.
2569,
Engrossed House Bill No.
2651,
Engrossed Committee Substitute for House Bill No.
2684,
Engrossed
Committee Substitute for House Bill No.
2685,
Engrossed House Bill
No.
2734,
Engrossed Committee Substitute for House Bill No.
2742,
Engrossed Committee Substitute for House Bill No.
2753,
Engrossed Committee Substitute for House Bill No.
2839,
Engrossed Committee
Substitute for House Bill No.
2877,
Engrossed House Bill No.
2950,
Engrossed House Bill No.
2952,
Engrossed Committee Substitute for
House Bill No.
3036 and
Engrossed Committee Substitute for House
Bill No.
3196.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Friday, April 10, 2009, at 11 a.m.
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