sdj-02nd day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
THIRD EXTRAORDINARY SESSION, 2009
SECOND DAY
____________
Charleston, W. Va., Wednesday, August 12, 2009
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Honorable Clark S. Barnes, a senator
from the fifteenth district.
Pending the reading of the Journal of Tuesday, August 11,
2009,
On motion of Senator White, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the fourth order of business.
Senator Stollings, from the Committee on Confirmations,
submitted the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 2, dated August 11, 2009,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 2
is submitted:
1. For Member, Fire Commission, Carl Sizemore, Mineral
Wells, Wood County, for the term ending June 30, 2013.
2. For Member, Fire Commission, Virgil White, South Charleston, Kanawha County, for the term ending June 30, 2012.
3. For Member, Fire Commission, Dale Clayton, Fairmont,
Marion County, for the term ending June 30, 2011.
4. For Member, Fire Commission, Randy James, Gassaway,
Braxton County, for the term ending June 30, 2012.
5. For Member, Fire Commission, Ted Shriver, Charleston,
Kanawha County, for the term ending June 30, 2012.
6. For Member, Board of Optometry, Dr. James Campbell, New
Martinsville, Wetzel County, for the term ending June 30, 2009.
7. For Member, Workforce Investment Council, Russell Fry,
Charleston, Kanawha County, for the term ending June 30, 2012.
8. For Member, Forest Management Review Commission, The
Honorable James Willison, Sistersville, Tyler County, for the term
ending March 14, 2015.
9. For Member, Fire Commission, Robert Sullivan,
Barboursville, Cabell County, for the term ending June 30, 2014.
10. For Member, Board of Control for Southern Regional
Education Board, The Honorable Thomas Campbell, Lewisburg,
Greenbrier County, for the term ending June 30, 2013.
11. For Member, Contractor Licensing Board, The Honorable
John Pino, Oak Hill, Fayette County, for the term ending June 30,
2013.
12. For Member, Board of Optometry, Dr. James Campbell, New
Martinsville, Wetzel County, for the term ending June 30, 2012.
13. For Member, Commission on the Arts, DeEtta King Hunter,
Lewisburg, Greenbrier County, for the term ending June 30, 2012.
14. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Amanda Pasdon, Morgantown, Monongalia County, for
the term ending June 30, 2013.
15. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Gary Johnson, Baker, Hardy County, for the term
ending June 30, 2013.
16. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Angela Vance, Charleston, Kanawha County, for the
term ending June 30, 2012.
17. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Denise Campbell, Elkins, Randolph County, for the
term ending June 30, 2013.
18. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Dr. David Avery, Vienna, Wood County, for the
term ending June 30, 2013.
19. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Karen Bowling, Beckley, Raleigh County, for the
term ending June 30, 2013.
20. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Dr. Steven Sebert, Barboursville, Cabell County,
for the term ending June 30, 2010.
21. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Brandon Tinney, Charleston, Kanawha County, for
the term ending June 30, 2012.
22. For Member, Health Enhancement and Lifestyle Planning
Advisory Council, Ryan Ferns, Wheeling, Ohio County, for the term ending June 30, 2013.
23. For Member, West Virginia University Board of Governors,
Diane Lewis, Morgantown, Monongalia County, for the term ending
June 30, 2013.
24. For Member, West Virginia University Board of Governors,
John Mattern, Fairmont, Marion County, for the term ending June 30,
2013.
25. For Member, West Virginia University Board of Governors,
Dr. Thomas Samuel Clark, Bruceton Mills, Preston County, for the
term ending June 30, 2013.
26. For Member, Natural Resources Commission, David Milne,
Bruceton Mills, Preston County, for the term ending June 30, 2016.
27. For Member, Natural Resources Commission, Dr. Thomas
Dotson, White Sulphur Springs, Greenbrier County, for the term
ending June 30, 2011.
28. For Member, Investment Management Board of Trustees,
Frank Oates, Morgantown, Monongalia County, for the term ending
January 31, 2011.
29. For Member, Investment Management Board of Trustees,
Randy Snider, Parkersburg, Wood County, for the term ending January
31, 2011.
30. For Member, Investment Management Board of Trustees, Guy
Bucci, Charleston, Kanawha County, for the term ending January 31,
2013.
31. For Member, Investment Management Board of Trustees, Rob
Alsop, Charleston, Kanawha County, for the term ending January 31, 2013.
32. For Member, Public Employees Insurance Agency Finance
Board, James Dailey II, Martinsburg, Berkeley County, for the term
ending June 30, 2013.
33. For Member, Public Employees Insurance Agency Finance
Board, John Ruddick, Hurricane, Putnam County, for the term ending
June 30, 2010.
34. For Member, Public Employees Insurance Agency Finance
Board, Troy Giatras, Charleston, Kanawha County, for the term
ending June 30, 2013.
35. For Member, Kanawha Valley Community and Technical
College Board of Governors, Bradley Shafer, Clendenin, Kanawha
County, for the term ending June 30, 2012.
36. For Member, Board of Examiners of Psychologists, Terri
Sigley, Morgantown, Monongalia County, for the term ending June 30,
2012.
37. For Member, Board of Examiners of Psychologists, Dr. Tina
Yost, Fairmont, Marion County, for the term ending June 30, 2012.
38. For Member, Board of Examiners of Psychologists, Michael
Folio, Hurricane, Putnam County, for the term ending June 30, 2012.
39. For Member, Statewide Independent Living Council, Scott
Adkins, St. Albans, Kanawha County, for the term ending June 30,
2012.
40. For Member, Statewide Independent Living Council, Erick
Dowdy, Huntington, Cabell County, for the term ending June 30,
2012.
41. For Member, Statewide Independent Living Council, Nathan
Parker, Huntington, Cabell County, for the term ending June 30,
2012.
42. For Member, Statewide Independent Living Council, Anne
Weeks, Huntington, Cabell County, for the term ending June 30,
2012.
43. For Member, Statewide Independent Living Council, Darla
Ervin, Morgantown, Monongalia County, for the term ending June 30,
2012.
44. For Member, Statewide Independent Living Council, Kevin
Maynus, Beckley, Raleigh County, for the term ending June 30, 2012.
45. For Member, Statewide Independent Living Council, Joyce
Floyd, Elkins, Randolph County, for the term ending June 30, 2012.
46. For Member, Library Commission, Dennis Taylor, Winfield,
Putnam County, for the term ending June 30, 2010.
47. For Member, Library Commission, Mary Bland Strickland,
Glenville, Gilmer County, for the term ending June 30, 2011.
48. For Member, Library Commission, Katy White, Charleston,
Kanawha County, for the term ending June 30, 2011.
49. For Member, Library Commission, Betty Gunnoe,
Martinsburg, Berkeley County, for the term ending June 30, 2012.
50. For Member, Library Commission, Dennis Altizer, War,
McDowell County, for the term ending June 30, 2013.
51. For Member, Library Commission, Connie Shumate,
Princeton, Mercer County, for the term ending June 30, 2013.
52. For Member, Library Commission, David Dalzell, Moundsville, Marshall County, for the term ending June 30, 2013.
53. For Member, Library Commission, Dr. Charles Julian,
Wheeling, Ohio County, for the term ending June 30, 2012.
54. For Member, West Virginia University Institute of
Technology Community and Technical College Board of Governors,
Mildred Shelton, Oak Hill, Fayette County, for the term ending June
30, 2013.
55. For Member, Board of Examiners in Counseling, Marilyn
Cassis, Charleston, Kanawha County, for the term ending June 30,
2014.
56. For Member, Fire Commission, Thomas Keefer, Winfield,
Putnam County, for the term ending June 30, 2011.
57. For Member, Consolidated Public Retirement Board, David
Wyant, Wheeling, Ohio County, for the term ending June 30, 2013.
58. For Member, Commission on the Arts, Max Armentrout,
Elkins, Randolph County, for the term ending June 30, 2012.
59. For Member, Board of Physical Therapy, John Spiker,
Morgantown, Monongalia County, for the term ending June 30, 2014.
60. For Member, Board of Physical Therapy, Lesleigh Barber-
Sprouse, Charleston, Kanawha County, for the term ending June 30,
2013.
And reports the same back with the recommendation that the
Senate do advise and consent to all of the nominations listed
above.
Respectfully submitted,
Ron Stollings,
Chair.
__________
The Senate then proceeded to the seventh order of business.
The time having arrived for the special order of business to
consider the list of nominees for public office submitted by His
Excellency, the Governor, the special order thereon was called by
the President.
Thereupon, Senator Tomblin (Mr. President) laid before the
Senate the following executive message:
Senate Executive Message No. 2, dated August 11, 2009 (
shown
in the Senate Journal of that day, pages 9 through 16, inclusive).
Senator Stollings then moved that the Senate advise and
consent to all of the executive nominations referred to in the
foregoing report from the Committee on Confirmations.
The question being on the adoption of the aforestated motion
by Senator Stollings,
The roll was then taken; and
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Prezioso, Snyder, Stollings, Sypolt,
Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--31.
The nays were: None.
Absent: Guills, Palumbo and Plymale--3.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the aforestated
motion by Senator Stollings had prevailed.
__________
Consideration of executive nominations having been concluded,
On motion of Senator Chafin, the Senate recessed until 1:30
p.m. today.
Upon expiration of the recess, the Senate reconvened.
On motion of Senator Edgell, the Senate recessed until 2:30
p.m. today.
Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 301--A Bill to amend and reenact §21A-6A-
1, §21A-6A-5 and §21A-6A-6 of the Code of West Virginia, 1931, as
amended, all relating to extended unemployment compensation
benefits; providing for a temporary "state 'on' indicator" based on
the average rate of total unemployment; providing for temporary
increases in the extended benefit period and total extended benefit
amount during a high unemployment period; making technical
amendments throughout; and correcting nomenclature throughout.
At the request of Senator Edgell, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Edgell, 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: Barnes,
Boley, Bowman, Browning, Caruth, Deem, Edgell, D. Facemire,
Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells,
White, Williams, Yost and Tomblin (Mr. President)--28.
The nays were: None.
Absent: Chafin, K. Facemyer, Guills, Oliverio, Palumbo and
Plymale--6.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 301) 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, Deem, Edgell, D. Facemire, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White,
Williams, Yost and Tomblin (Mr. President)--28.
The nays were: None.
Absent: Chafin, K. Facemyer, Guills, Oliverio, Palumbo and
Plymale--6.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 301) passed with its title.
Senator Edgell moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Deem, Edgell, D. Facemire, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--28.
The nays were: None.
Absent: Chafin, K. Facemyer, Guills, Oliverio, Palumbo and
Plymale--6.
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. 301) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator Edgell, the Senate recessed until 5 p.m.
today.
Upon expiration of the recess, the Senate reconvened and
resumed business under the third order.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 302--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §5-5-7; to amend said code by adding thereto a new
section, designated §5-10-22k; and to amend said code by adding
thereto a new section, designated §18-7A-26v, all relating to
providing salary and benefit enhancements for certain current and former public employees generally; providing authority for the
Governor to authorize by executive order a one-time payment of a
$500 salary enhancement to certain public employees on or before
November 30, 2009; providing for selection of payment date by State
Auditor; requiring payment of the salary enhancements upon
authorization; providing for transfer and expenditure of funding
appropriated to State Budget Office to spending units and county
boards of education for payment of the salary enhancements;
defining terms; providing a one-time payment of a $266 benefit
enhancement to certain retirants of the Public Employees Retirement
System and the State Teachers Retirement System on November 25,
2009; and providing for the pro rata distribution of the benefit
enhancement to certain beneficiaries.
Referred to the Committee on Finance.
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. 3003, Making supplementary appropriation
to Department of Commerce, Development Office, Broadband Deployment
Fund.
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, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 3004, Expiring funds from Lottery Commission, Video Lottery Income Fund, and making supplementary
appropriation from General Revenue to various accounts.
On motion of Senator Edgell, 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:
By striking out everything after the enacting clause and
inserting in lieu thereof the provisions of Engrossed House Bill
No. 304;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 3004--A Bill expiring funds to the
unappropriated surplus balance in the State Fund, General Revenue,
for the fiscal year ending June 30, 2010, in the amount of
$53,463,000 from the Lottery Commission - Video Lottery Income
Fund, fund 7203, fiscal year 2010, organization 0705, and making a
supplementary appropriation of public moneys out of the Treasury
from the balance of moneys remaining as an unappropriated surplus
balance in the State Fund, General Revenue, to the Governor's
Office, fund 0101, fiscal year 2010, organization 0100, to the
Department of Administration - Consolidated Public Retirement
Board, fund 0195, fiscal year 2010, organization 0205, to the
Department of Revenue - State Budget Office, fund 0595, fiscal year
2010, organization 0703, and to the Bureau of Senior Services, fund
0420, fiscal year 2010, organization 0508, by supplementing and amending the appropriations for the fiscal year ending June 30,
2010.
On motion of Senator Edgell, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 3004)
and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor, which
was received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
August 12, 2009
Senate Executive Message No. 3
TO: The Honorable Members of the
West Virginia Senate
The Honorable Members of the
West Virginia House of Delegates
Ladies and Gentlemen:
I am writing concerning Engrossed House Bill No. 302 and
Engrossed Senate Bill No. 3004, as amended and passed by the House
of Delegates. As you are aware, the West Virginia Constitution
gives the Governor the authority to convene the Legislature in
extraordinary session, but when so convened, the Legislature "shall enter upon no business except that stated in the proclamation by
which it was called together." W. Va. Const. Art. VII §7. It is
my belief, as Governor, that Engrossed House Bill No. 302 and
Engrossed Senate Bill No. 3004, as amended, exceed the scope of my
proclamation convening the Legislature into extraordinary session.
As the language in my proclamation authorized a one-time salary
enhancement for "full-time public employees" only, and as the
proclamation stated a specific level of appropriation to be
dedicated to the payment of such enhancement, Engrossed House Bill
No. 302 and Engrossed Senate Bill No. 3004, as amended, are outside
the boundaries of the Constitution. For this reason, I request the
West Virginia Senate to not take up Engrossed House Bill No. 302
and to refuse to recede from its position on Engrossed Senate Bill
No. 3004.
Sincerely,
Joe Manchin III,
Governor.
The Senate proceeded to the eleventh order of business and the
introduction of guests.
Senator Edgell offered the following pre-adjournment
resolution:
Senate Resolution No. 303--Raising a committee to notify the
House of Delegates the Senate is ready to adjourn
sine die.
Resolved by the Senate:
That the President be authorized to appoint a committee of
three to notify the House of Delegates that the Senate has completed its labors and is ready to adjourn
sine die.
At the request of Senator Edgell, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senator Tomblin (Mr. President), under the provisions of the
foregoing resolution, appointed the following committee to notify
the House of Delegates of impending Senate adjournment:
Senators Bowman, Unger and Sypolt.
Senator Edgell then offered the following resolution:
Senate Resolution No. 304--Raising a committee to notify His
Excellency, the Governor, that the Legislature is ready to adjourn
sine die.
Resolved by the Senate:
That the President be authorized to appoint a committee of
three to join with a similar committee of the House of Delegates to
notify His Excellency, the Governor, that the Legislature has
completed its labors and is ready to adjourn
sine die.
At the request of Senator Edgell, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Under the provisions of the foregoing resolution, Senator
Tomblin (Mr. President) appointed the following committee to notify
His Excellency, the Governor, that the Senate was ready to adjourn:
Senators Prezioso, Foster and Barnes.
At the request of Senator Wells, unanimous consent being
granted, the Joint Committee on Enrolled Bills was granted permission, after it has examined, found truly enrolled and
presented to His Excellency, the Governor, for his action, bills
passed but not presented to him prior to adjournment of this third
extraordinary session of the seventy-ninth Legislature in the year
two thousand nine, to file its reports with the Clerk and that the
same be included in the Journal of the last day of the session; and
also, that any communications from His Excellency, the Governor, as
to his action on bills after adjournment of the session, be
included in the Journal.
In accordance with the foregoing unanimous consent agreement,
the following report of the Joint Committee on Enrolled Bills was
filed as follows:
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 18th day of August, 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:
(S. B. No. 3003), Making supplementary appropriation to
Department of Commerce, Development Office, Broadband Deployment
Fund.
And,
(H. B. No. 301), Utilizing additional federal matching moneys
for extended unemployment compensation benefits.
Respectfully submitted,
Corey Palumbo,
Chair, Senate Committee.
Danny Wells,
Chair, House Committee.
Executive Communications
Under authorization of Senate approval therefor in prior
proceedings today, to include in this day's Journal communications
showing the Governor's action on enrolled bills presented to him in
post-session reports, the following are inserted hereinafter:
The Clerk then presented a communication from His Excellency,
the Governor, advising that on August 19, 2009, he had approved
Enr. Senate Bill No. 3003 and
Enr. House Bill No. 301.
[CLERK'S NOTE: Enrolled Senate Bill No. 3003 became law
without the Governor's signature on August 19, 2009, under the
provisions of Subsection 11, Section 51, Article VI of the
Constitution of West Virginia.]
On motion of Senator Edgell, the third extraordinary session
of the Senate in the year two thousand nine adjourned
sine die.
________