sdj-1st day 5ES

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
FIFTH EXTRAORDINARY SESSION, 2005
FIRST DAY
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Charleston, W. Va., Sunday, November 13, 2005

Pursuant to the proclamation of His Excellency, the Governor, the Honorable Joe Manchin III, dated the tenth day of November, two thousand five, convening the seventy-seventh Legislature of West Virginia in extraordinary session today (Sunday, November 13, 2005), under the provisions of section seven, article seven of the Constitution of West Virginia, the Senate assembled in its chamber in the state capitol in the City of Charleston at 6 o'clock p.m., and was called to order by its President, the Honorable Earl Ray Tomblin.
Prayer was offered by the Honorable Walt Helmick, a senator from the fifteenth district.
On the call of the roll, the following answered to their names:
Senators Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minear, Prezioso, Sharpe, Sprouse, Unger, Weeks, Yoder and Tomblin (Mr. President).
Thirty members having answered to their names, the President declared the presence of a quorum.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the following proclamation from His Excellency, the Governor, convening the Legislature in extraordinary session, which was read by the Clerk:
STATE OF WEST VIRGINIA
EXECUTIVE DEPARTMENT
CHARLESTON
A P R O C L A M A T I O N
By the Governor
I, JOE MANCHIN III, GOVERNOR of the State of West Virginia, by virtue of the authority vested in me by Section 7, Article VII of the Constitution of West Virginia, do hereby call the Legislature of West Virginia to convene in Extraordinary Session at six o'clock p.m. on the thirteenth day of November, two thousand five, in its chambers in the State Capitol, City of Charleston, for the sole purpose of considering and acting upon the following matters:
FIRST:Legislation designed to qualify the West Virginia Employers' Mutual Insurance Company for a federal tax exemption pursuant to the provisions of §501(c)(27)(B) of the Internal Revenue Code and to include a statement reflecting the intent to provide for the capitalization of the West Virginia Employers' Insurance Company in a manner consistent with the requirements of §351 of the Internal Revenue Code.
SECOND:Legislation relating generally to the treatment of Coal-Workers' Pneumoconiosis Fund (CWP Fund) assets accrued and liabilities incurred prior to termination of the Workers' Compensation Commission and requiring the West Virginia Employers' Mutual Insurance Company to offer insurance related to the CWP Fund's coverage responsibilities upon termination of the Workers' Compensation Commission.
THIRD:Legislation providing for a maximum amount payable to employees of the Workers' Compensation Commission who are employed by the West Virginia Employers' Mutual Insurance Company immediately upon termination of the Workers' Compensation Commission who irrevocably surrender accrued sick leave in exchange for one hour of pay for each hour of accrued sick leave.
FOURTH:Legislation providing for the third-party administration of the Old Fund, the Uninsured Employer Fund, the Self-Insured Employer Guaranty Risk Pool, the Self-Insured Employer Security Risk Pool and the Private Carrier Guaranty Fund upon the termination of the Workers' Compensation Commission.
FIFTH:Legislation to authorize and appropriate the expenditure of public moneys to pay the expenses of this extraordinary session.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.

DONE at the Capitol in the City of Charleston, State of West Virginia, this the tenth day of November, in the year of our Lord, Two Thousand Five, and in the One Hundred Forty-Third year of the State.

JOE MANCHIN III,
Governor.

By the Governor:

BETTY IRELAND,

Secretary of State.

Senator Chafin offered the following resolution:
Senate Resolution No. 501--Raising a committee to inform the House of Delegates the Senate has assembled in extraordinary session.
Resolved by the Senate:
That a committee of three be appointed by the President to inform the House of Delegates that the Senate has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business for which the extraordinary session was called by His Excellency, the Governor.
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.
Whereupon, the President appointed as members of such committee the following:
Senators Prezioso, Dempsey and Guills.
Subsequently, Senator Prezioso, from the committee to notify the House of Delegates the Senate has assembled in extraordinary session, and is ready to proceed with the business of the session, announced that the committee had discharged its duties.
A message from the House of Delegates, by
Delegates Pethtel, Longstreth and L. White, announced that the House of Delegates has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business stated in the proclamation convening the Legislature.
Senator Chafin then offered the following resolution:
Senate Resolution No. 502--Raising a committee to wait upon the Governor.
Resolved by the Senate:
That a committee of three on the part of the Senate, to join with a similar committee on the part of the House of Delegates, be appointed by the President to notify His Excellency, the Governor, that at his call the Legislature has assembled in extraordinary session, with a quorum of each house present; and is ready to receive any communication or message he may be pleased to present under section seven, article seven of the Constitution of West Virginia, which provides that no business except that stated in his proclamation be considered.
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.
Whereupon, the President appointed as members of such committee the following:
Senators Sharpe, Fanning and Boley.
A message from the House of Delegates, by
Delegates Pethtel, Longstreth and L. White, announced that the Speaker had appointed them a committee of three to join with a similar committee on the part of the Senate to wait upon the Governor, under the provisions of Senate Resolution No. 502. Senate and House members of this select committee then proceeded to the executive offices.
Subsequently, Senator Sharpe reported that the joint Senate and House committee had performed the duty assigned to it.
The Senate proceeded to the second order of business and the introduction of guests.
Senator Tomblin (Mr. President) laid before the Senate the following communication:
REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY
Charleston

November 10, 2005

The Honorable Earl Ray Tomblin
President, Senate of West Virginia
State Capitol
Charleston, West Virginia
Dear President Tomblin:
This is to notify you that in accordance with the provisions of the Open Government Proceedings Act §6-9A, et seq., of the West Virginia Code, timely notice of the meeting of the Board of the West Virginia Regional Jail and Correctional Facility Authority (WVRJCFA) was filed October 6, 2005, with the Secretary of State's office for publication in the West Virginia State Register.
The meeting was held October 25, 2005, at 1:30 p.m., in the Conference Room of the WVRJCFA at 1325 Virginia Street East in Charleston, West Virginia. As the duly elected Chairman of the Board of WVRJCFA, I am authorized to advise you that a quorum was ascertained and by a majority vote and in accordance with West Virginia Code §31-20, et seq., Wyetta Fredericks was appointed, subject to the advice and consent of the Senate, as Executive Director, to serve at the will and pleasure of the Board, for a term of five years to commence on November 1, 2005.
Accordingly, I am herewith submitting the name of Wyetta Fredericks as Executive Director for the WVRJCFA for the confirmation process of the West Virginia State Senate.
Sincerely,
James W. Spears,
Chair.
Which communication was received and referred to the Committee on Confirmations.
On motion of Senator Love, consideration of the nomination submitted by the Regional Jail and Correctional Facility Authority immediately hereinbefore reported was made a special order of business for Monday, November 14, 2005, at 6 p.m.
The Senate proceeded to the third order of business.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, consisting of executive nominations for appointees:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

November 10, 2005

Senate Executive Message No. 1
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully submit the following nominations for your advice and consent:
1.For Member, Council for Community and Technical College Education, Ruth Thompson Scott, Madison, Boone County, for the term ending December 20, 2008.
2.For Member, Council for Community and Technical College Education, Judi L. Almond, Crab Orchard, Raleigh County, for the term ending December 20, 2008.
3.For Member, Council for Community and Technical College Education, John Panza, Fairmont, Marion County, for the term ending December 20, 2006.
4.For Member, Council for Community and Technical College Education, Jason Cuomo, Wellsburg, Brooke County, for the term ending December 20, 2007.
5.For Member, Council for Community and Technical College Education, Gregory D. Smith, Vienna, Wood County, for the term ending December 20, 2006.
6.For Member, Affordable Housing Trust Fund Board of Directors, Kevin Wilfong, Fairmont, Marion County, for the term ending June 30, 2008.
7.For Member, Affordable Housing Trust Fund Board of Directors, Ray Joseph, Charleston, Kanawha County, for the term ending June 30, 2008.
8.For Member, Affordable Housing Trust Fund Board of Directors, Sandra Hamlin, Charleston, Kanawha County, for the term ending June 30, 2008.
9.For Member, Affordable Housing Trust Fund Board of Directors, Randy Snider, Parkersburg, Wood County, for the term ending June 30, 2008.
10.For Member, Affordable Housing Trust Fund Board of Directors, The Honorable Henry Shores, Charleston, Kanawha County, for the term ending June 30, 2008.
11.For Member, Affordable Housing Trust Fund Board of Directors, Virginia Lewis, Delbarton, Mingo County, for the term ending June 30, 2008.
12.For Member, Affordable Housing Trust Fund Board of Directors, Mary Skeens, Charleston, Kanawha County, for the term ending June 30, 2008.
13.For Member, Affordable Housing Trust Fund Board of Directors, Fred McDonald, Bridgeport, Harrison County, for the term ending June 30, 2008.
14.For Member, Board of Dental Examiners, H. Richard Marshall, Jr., Ronceverte, Greenbrier County, for the term ending June 30, 2010.
15.For Member, Board of Osteopathy, Dr. Thomas L. Gilligan, Sistersville, Tyler County, for the term ending June 30, 2010.
16.For Member, Board of Osteopathy, Dr. Douglas D. Wolfe, Mannington, Marion County, for the term ending June 30, 2009.
17.For Member, Board of Osteopathy, Dr. Ernest Miller, Jr., Parkersburg, Wood County, for the term ending June 30, 2008.
18.For Member, Board of Osteopathy, Dr. Elizabeth Blatt, Princeton, Mercer County, for the term ending June 30, 2008.
19.For Member, Board of Osteopathy, Robert Whitler, Charleston, Kanawha County, for the term ending June 30, 2007.
20.For Member, Southern West Virginia Community and Technical College Board of Governors, Linda Akers, Logan, Logan County, for the term ending June 30, 2009.
21.For Member, Southern West Virginia Community and Technical College Board of Governors, Shelley T. Huffman, Charleston, Kanawha County, for the term ending June 30, 2009.
22.For Member, Southern West Virginia Community and Technical College Board of Governors, George Kostas, Logan, Logan County, for the term ending June 30, 2009.
23.For Member, Board of Professional Surveyors, Mark Hornish, Sutton, Braxton County, for the term ending July 1, 2009.
24.For Member, Board of Professional Surveyors, Roy Shrewsbury, Beckley, Raleigh County, for the term ending July 1, 2009.
25.For Member, Board of Professional Surveyors, Anthony Sparacino, Beckley, Raleigh County, for the term ending July 1, 2008.
26.For Member, National Coal Heritage Area Authority, John David Brammer, Chapmanville, Logan County, for the term ending June 30, 2006.
27.For Member, West Liberty State College Board of Governors, Larry Miller, Wheeling, Ohio County, for the term ending June 30, 2009.
28.For Member, West Liberty State College Board of Governors, Dr. Clyde Campbell, Wheeling, Ohio County, for the term ending June 30, 2009.
29.For Member, West Liberty State College Board of Governors, Lynne Exley, Wheeling, Ohio County, for the term ending June 30, 2008.
30.For Member, West Liberty State College Board of Governors, Danny Greathouse, Weirton, Hancock County, for the term ending June 30, 2009.
31.For Member, Glenville State College Board of Governors, Marge Burke, Sand Fork, Gilmer County, for the term ending June 30, 2009.
32.For Member, Glenville State College Board of Governors, Terry Butcher, Glenville, Gilmer County, for the term ending June 30, 2009.
33.For Member, Glenville State College Board of Governors, R. Fred Radabaugh, Elkview, Kanawha County, for the term ending June 30, 2009.
34.For Member, Glenville State College Board of Governors, Sue Morris, Glenville, Gilmer County, for the term ending June 30, 2008.
35.For Member, Glenville State College Board of Governors, Thomas McPherson, Glenville, Gilmer County, for the term ending June 30, 2006.
36.For Member, Glenville State College Board of Governors, Jerry Milliken, Spencer, Roane County, for the term ending June 30, 2008.
37.For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Everett Sullivan, Dunbar, Kanawha County, for the term ending January 31, 2007.
38.For Member, State Conservation Committee, Charles Larry Layman, Lewisburg, Greenbrier County, for the term ending September 6, 2009.
39.For Member, Water Development Board, Michael F. Duplaga, Jr., Wheeling, Ohio County, for the term ending June 30, 2010.
40.For Commissioner, Division of Tourism, Betty Carver, Belle, Kanawha County, to serve at the will and pleasure of the Governor.
41.For Member, West Virginia School of Osteopathic Medicine Board of Governors, Dr. Paul G. Kleman, Lewisburg, Greenbrier County, for the term ending June 30, 2009.
42.For Member, West Virginia School of Osteopathic Medicine Board of Governors, Sharon Horton Rowe, White Sulphur Springs, Greenbrier County, for the term ending June 30, 2009.
43.For Member, West Virginia School of Osteopathic Medicine Board of Governors, Dr. Kendall Wilson, Lewisburg, Greenbrier County, for the term ending June 30, 2008.
44.For Member, West Virginia School of Osteopathic Medicine Board of Governors, Dr. Donald Newell, Jr., Lochgelly, Fayette County, for the term ending June 30, 2008.
45.For Member, Board of Banking and Financial Institutions, F. Michael Nelson, St. Marys, Pleasants County, for the term ending June 30, 2010.
46.For Member, Board of Banking and Financial Institutions, Larry Moore, Ceredo, Wayne County, for the term ending June 30, 2008.
47.For Member, Higher Education Policy Commission, David Tyson, Huntington, Cabell County, for the term ending June 30, 2009.
48.For Member, Board of Medicine, Dr. J. David Lynch, Jr., Morgantown, Monongalia County, for the term ending September 30, 2009.
49.For Member, Board of Medicine, Dr. Michael Lee Ferrebee, Morgantown, Monongalia County, for the term ending September 30, 2010.
50.For Member, Board of Medicine, Dr. John Wade, Point Pleasant, Mason County, for the term ending September 30, 2010.
51.For Member, Board of Medicine, Dr. Bill May, Huntington, Cabell County, for the term ending September 30, 2007.
52.For Member, Board of Medicine, Kenneth Dean Wright, Huntington, Cabell County, for the term ending September 30, 2007.
53.For Member, Board of Medicine, Beth Hayes, Bluefield, Mercer County, for the term ending September 30, 2007.
54.For Member, West Virginia School of Osteopathic Medicine Board of Governors, John Curry, Lewisburg, Greenbrier County, for the term ending June 30, 2009.
55.For Member, Public Employees Insurance Agency Finance Board, Mike Garrison, Huntington, Cabell County, for the term ending June 30, 2009.
56.For Member, Public Employees Insurance Agency Finance Board, James W. Dailey II, Martinsburg, Berkeley County, for the term ending June 30, 2009.
57.For Member, Board of Registration for Professional Engineers, Leonard Joseph Timms, Bridgeport, Harrison County, for the term ending June 30, 2010.
58.For Member, Board of Registration for Professional Engineers, William Pierson, Milton, Cabell County, for the term ending June 30, 2008.
59.For Member, Board of Hearing Aid Dealers, Cesar M. Anderson, Charleston, Kanawha County, for the term ending July 13, 2007.
60.For Member, Bluefield State College Board of Governors, James J. Palmer III, Bluefield, Mercer County, for the term ending June 30, 2009.
61.For Member, Bluefield State College Board of Governors, Norris Kantor, Bluefield, Mercer County, for the term ending June 30, 2009.
62.For Member, Bluefield State College Board of Governors, Dr. Lyn Guy, Union, Monroe County, for the term ending June 30, 2009.
63.For Member, Bluefield State College Board of Governors, Anne Crowe, Bluefield, Mercer County, for the term ending June 30, 2008.
64.For Commissioner, Division of Motor Vehicles, Joseph J. Cicchirillo, Follansbee, Brooke County, to serve at the will and pleasure of the Governor.
65.For Member, Economic Development Authority, Doug Reynolds, Huntington, Cabell County, for the term ending June 30, 2008.
66.For Member, Economic Development Authority, Timothy R. Duke, Huntington, Cabell County, for the term ending June 30, 2006.
67.For Member, Economic Development Authority, Roger P. Stewart II, Scott Depot, Putnam County, for the term ending June 30, 2008.
68.For Member, Economic Development Authority, David Wayne Mullins, Ripley, Jackson County, for the term ending June 30, 2009.
69.For Member, Board of Education, Robert William Dunlevy, Wheeling, Ohio County, for the term ending November 4, 2014.
Notice of these appointments was previously provided to the appropriate legislative staff at the time the appointments were made.
Sincerely,

Joe Manchin III,

Governor.

Which communication was received and referred to the Committee on Confirmations and incorporated with the nomination submitted by the Regional Jail and Correctional Facility Authority received earlier; all to be considered as a special order of business for Monday, November 14, 2005, at 6 p.m.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced and read by their titles:
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 5001- A Bill to amend and reenact §23-2C-1, §23- 2C-4 and §23-2C-15 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §23-2C-3a, all relating generally to workers' compensation; providing a statement of intent to meet the provisions of section three hundred fifty-one of the Internal Revenue Code; providing that the West Virginia Employers' Mutual Insurance Company may not be dissolved prior to the first day of January, two thousand nine; providing that the West Virginia Employers' Mutual Insurance Company shall not transact insurance beyond workers' compensation and such insurance incidental to workers' compensation insurance; providing that the West Virginia Employers' Mutual Insurance Company shall file amended articles of incorporation and amended bylaws; nullifying certain actions taken by the provisional board of the West Virginia Employers' Mutual Insurance Company; providing for the appointment and terms of office for the board of directors for the West Virginia Employers' Mutual Insurance Company; providing a statement of intent to qualify for a federal taxation exemption; providing that the West Virginia Employers' Mutual Insurance Company shall offer coverage to employers of West Virginia until the first day of January, two thousand nine; and making certain technical corrections.
At the request of Senator Helmick, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 5002- A Bill to amend and reenact §23-4B-1, §23- 4B-2, §23-4B-3, §23-4B-4, §23-4B-5, §23-4B-7 and §23-4B-9 of the Code of West Virginia, 1931, as amended, all relating to the Coal- Workers' Pneumoconiosis Fund; providing that the Coal-Workers' Pneumoconiosis Fund shall provide coverage for any claim with a date of last exposure on or before the thirty-first day of December, two thousand five; transferring administrative duties of the Coal- Workers' Pneumoconiosis Fund from the Executive Director of the Workers' Compensation Commission to the Insurance Commission; and providing that the West Virginia Employers' Mutual Insurance Company shall offer insurance to provide for the benefits required under article four-b, chapter twenty-three of the Code of West Virginia following the termination of the Workers' Compensation Commission until the thirty-first day of December, two thousand eight.
At the request of Senator Helmick, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 5003-- A Bill to amend and reenact §23-2C-14 of the Code of West Virginia, 1931, as amended, relating to employees employed by the Workers' Compensation Commission on the thirty-first day of December, two thousand five, who irrevocably surrender accrued sick leave in exchange for one hour of pay for each hour of accrued sick leave.
At the request of Senator Helmick, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 5004-- A Bill to amend and reenact §23-2C-2, §23-2C-7, §23-2C-8, §23-2C-16 and §23-2C-20 of the Code of West Virginia, 1931, as amended, all relating to the administration of the Old Fund, Uninsured Employer Fund, Self-Insured Employer Guaranty Risk Pool, Self-Insured Employer Security Risk Pool and Private Carrier Guaranty Fund.
At the request of Senator Helmick, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
Pending announcement of meetings of standing committees of the Senate, including a minority party caucus,
Senator Chafin then moved that the Senate adjourn until tomorrow, Monday, November 14, 2005, at 6 p.m.
The question being on the adoption of Senator Chafin's motion, and on this question, Senator Fanning demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minear, Prezioso, Sharpe, Weeks, White and Tomblin (Mr. President)--25.
The nays were: Barnes, Deem, McKenzie, Sprouse, Unger and Yoder--6.
Absent: Minard, Oliverio and Plymale--3.
So, a majority of those present and voting having voted in the affirmative, the President declared Senator Chafin's motion had prevailed.
In accordance with the foregoing motion, the Senate adjourned until tomorrow, Monday, November 14, 2005, at 6 p.m.
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