WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
SECOND EXTRAORDINARY SESSION, 2003
____________
MONDAY, JUNE 30, 2003
Pursuant to the adjournment of June 14, 2003, under authority
of
House Concurrent Resolution No. 202, Providing for an
adjournment of the Legislature until the 30th day of June, 2003.
The Senate reassembled in extraordinary session in its chamber
in the state capitol in the City of Charleston, at 3 p.m., and was
called to order by its President, the Honorable Earl Ray Tomblin.
Prayer was offered by the Honorable Brooks F. McCabe, Jr., a
senator from the seventeenth district.
Pending the reading of the Journal of Saturday, June 14, 2003,
On motion of Senator Caldwell, 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 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. Com. Sub. for Senate Bill No. 2012, Allowing agencies,
counties and their instrumentalities to enter into energy saving
contracts; leaseback.
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 page two, by striking out everything after the enacting
clause and inserting in lieu thereof the provisions of Engrossed
House Bill No. 222;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 2012--A Bill to amend
chapter five-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new article,
designated article three-b, relating to authorizing state agencies
to enter into performance-based contracts with qualified providers
of energy-conservation measures for the purpose of reducing energy
operating costs of agency-owned buildings.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 2012, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Unger--1.
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 S. B. No. 2012) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Unger--1.
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 S. B. No. 2012) takes effect from passage.
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 passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 212--A Bill
expiring funds to the
unappropriated surplus balance in the state fund, general revenue,
for the fiscal year ending the thirtieth day of June, two thousand
three, in the amount of three million dollars from the revenue
shortfall reserve fund, fund 2038, organization 0201, and making a
supplementary appropriation of public moneys out of the treasury
from the unappropriated surplus balance for the fiscal year ending
the thirtieth day of June, two thousand three, to the governor's
office - civil contingent fund, fund 0105, fiscal year 2003,
organization 0100.
Referred to the Committee on Finance.
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. 213--A Bill
making a supplementary
appropriation of public moneys out of the treasury from the balance
of moneys remaining as an unappropriated balance in the state fund,
general revenue, to the department of education - state department
of education, fund 0313, fiscal year 2004, organization 0402, to
the department of education and the arts - office of the secretary,
fund 0294, fiscal year 2004, organization 0431, to the West
Virginia development office, fund 0256, fiscal year 2004,
organization 0307, and the higher education policy commission -
administration - control account, fund 0589, fiscal year 2004,
organization 0441, to the higher education policy commission - system - control account, fund 0586, fiscal year 2004, organization
0442, and to the higher education policy commission - legislative -
funding priorities - control account, fund 0591, fiscal year 2004,
organization 0441, all supplementing and amending the
appropriations for the fiscal year ending the thirtieth day of
June, two thousand four.
Referred to the Committee on Finance.
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. 219--A Bill making a supplementary
appropriation of federal funds out of the treasury from the balance
of federal moneys remaining unappropriated for the fiscal year
ending the thirtieth day of June, two thousand four, to a new item
of appropriation designated to the governor's office - jobs and
growth tax relief reconciliation act of 2003, fund 8859, fiscal
year 2004, organization 0100, supplementing and amending chapter
twenty, acts of the Legislature, regular session, two thousand
three, known as the budget bill.
Referred to the Committee on Finance.
The Senate proceeded to the fourth order of business.
Senator Rowe,
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 16th day of June, 2003, 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:
(H. B. No. 202), Increasing the amount available from the
consolidated fund as a revolving loan to the West Virginia economic
development authority.
(H. B. No. 203), Expanding funding methods for community
improvement generally.
(H. B. No. 204), Updating the meaning of certain terms used in
the West Virginia personal income tax act.
And,
(H. B. No. 205), Updating the meaning of certain terms used in
the West Virginia corporation net income tax act.
Respectfully submitted,
Larry L. Rowe,
Chair, House Committee.
Sharon Spencer,
Chair, Senate Committee.
Senator Rowe, 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 19th day of June, 2003, 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. 2001), Providing for executive appointment of
members of pension bond review committee.
(S. B. No. 2003), Updating fee structure provisions for
certain broker-dealers and agents; other provisions.
(S. B. No. 2004), Continuing equal pay commission.
(S. B. No. 2009), Continuing funding of Hatfield-McCoy
regional recreation authority projects.
(S. B. No. 2010), Relating to economic opportunity districts.
(S. B. No. 2011), Increasing certain court filing fees and
dedicating to courthouse facilities improvement fund and to legal
services for domestic violence victims.
(S. B. No. 2014), Relating generally to promulgation of
administrative rules by various executive or administrative
agencies.
(S. B. No. 2015), Relating to receipt and disbursement of
funds for construction of veterans' nursing home.
(H. B. No. 210), Supplemental appropriation to various
departments in the governor's office.
(H. B. No. 211), Supplementary appropriation in the state
fund, general revenue, to the department of military affairs and
public safety.
(H. B. No. 214), Expiring funds from the division of
banking-assessment and examination fund to the department of tax
and revenue-tax division.
(H. B. No. 215), Supplementary appropriation to the higher
education policy commission.
(H. B. No. 216), Supplementary appropriation to the department
of military affairs and public safety-division of veterans' affairs-veterans' home.
(H. B. No. 217), Supplementary appropriation to a new item of
appropriation designated to the board of pharmacy.
(H. B. No. 218), Supplementary appropriation to a new item of
appropriation designated to the department of military affairs and
public safety - division of veterans' affairs.
(H. B. No. 223), Expiring funds to the balance of the workers'
compensation fund.
And,
(H. B. No. 224), Expiring funds to the unappropriated balance
in the state excess lottery revenue fund.
Respectfully submitted,
Larry L. Rowe,
Chair, Senate Committee.
Sharon Spencer,
Chair, House Committee.
Without objection, the Senate returned to the third order of
business.
Executive Communications
The Clerk then presented communications from His Excellency,
the Governor, advising that on June 19, 2003, he had approved Enr.
Senate Bill No. 2001, Enr. Senate Bill No. 2003, Enr. Senate Bill
No. 2004, Enr. Senate Bill No. 2011, Enr. Senate Bill No. 2014,
Enr. Senate Bill No. 2015, Enr. House Bill No. 202, Enr. House Bill
No. 203, Enr. House Bill No. 204 and Enr. House Bill No. 205; on
June 23, 2003, he had approved Enr. House Bill No. 210 and Enr. House Bill No. 214; on June 24, 2003, he had approved Enr. Senate
Bill No. 2009, Enr. House Bill No. 215, Enr. House Bill No. 216,
Enr. House Bill No. 217, Enr. House Bill No. 218, Enr. House Bill
No. 223 and Enr. House Bill No. 224; and on June 25, 2003, he had
approved Enr. Senate Bill No. 2010 and Enr. House Bill No. 211.
The Senate proceeded to the sixth order of business, which
agenda includes the making of main motions.
On motion of Senator McCabe, the Senate requested the return
from the House of Delegates of
Enr. Senate Bill No. 2013, Relating to workers' compensation
generally.
Passed by the Senate on Saturday, June 14, 2003,
The bill still being in the possession of the Senate,
On motion of Senator McCabe, the Senate reconsidered the vote
as to the effective date and passage of the bill.
On motion of Senator Chafin, the Senate reconsidered its
action by which on Saturday, June 14, 2003, it adopted Senator
Chafin's motion that the Senate concur in the House of Delegates
amendments to the bill (shown in the Senate Journal of that day,
pages 90 to 95, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's
motion that the Senate concur in the House of Delegates amendments
to the bill.
At the request of Senator Chafin, and by unanimous consent,
his foregoing motion was withdrawn.
On motions of Senators Tomblin (Mr. President), Sprouse and
McCabe, the following amendments to the House of Delegates
amendments to the bill were reported by the Clerk, considered
simultaneously, and adopted:
O
n page eighteen, section one, after line four, by inserting
a new subsection, designated subsection (m), to read as follows:
(m) The amendments to this section effected by the enactment
of Enrolled Senate Bill No. 2013 in the year two thousand three
shall become operative on the first day of October, two thousand
three.;
On page fifty-seven, section one, after line twenty-one, by
inserting a new subsection, designated subsection (d), to read as
follows:
(d) It is the intent of the Legislature that the transfer of
the administration of the workers' compensation system of this
state from the workers' compensation division under the
commissioner of the bureau of employment programs to the workers'
compensation commission under its executive director and the
workers' compensation board of managers is to become effective the
first day of October, two thousand three. Any provisions of the
enactment of Enrolled Senate Bill No. 2013 in the year two thousand
three relating to the transfer of the administration of the
workers' compensation system of this state that conflict with the
intent of the Legislature as described in this subsection shall, to
that extent, become operative on the first day of October, two
thousand three, and until that date, prior enactments of this code in effect on the effective date of Enrolled Senate Bill No. 2013
relating to the administration of the workers' compensation system
of this state, whether amended and reenacted or repealed by the
passage of Enrolled Senate Bill No. 2013, have full force and
effect. All provisions of the enactment of Enrolled Senate Bill
No. 2013 in the year two thousand three relating to matters other
than the transfer of the administration of the workers'
compensation system of this state shall become operative on the
effective date of that enactment, unless otherwise specifically
provided for in that enactment.;
On page one hundred fifteen, section four, line sixteen, after
the word "surcharges" by inserting a comma and the words "except
for individual employer merit rate adjustments,";
On page one hundred eighty-one, section one-c, line twenty-
four, after "(h)", by inserting the following: In the event that
an employer files a timely objection to any order of the division
with respect to compensability, or any order denying an application
for modification with respect to temporary total disability
benefits, or with respect to those expenses outlined in subsection
(a), section three of this article, the division shall continue to
pay to the claimant such benefits and expenses during the period of
such disability. Where it is subsequently found by the division
that the claimant was not entitled to receive such temporary total
disability benefits or expenses, or any part thereof, so paid, the
division shall, when the employer is a subscriber to the fund,
credit said employer's account with the amount of the overpayment.;
On page one hundred eighty-three, section one-d, line twenty-
two, by striking out the words "intermediate court of appeals" and
inserting in lieu thereof the words "workers' compensation board of
review";
On page one hundred eighty-seven, line eleven, by striking out
the section caption and inserting in lieu thereof a new section
caption, to read as follows:
§23-4-1g. Weighing of evidence.;
On page two hundred twenty-nine, section six, after line
seventeen, by striking out subsection (o) in its entirety and
inserting in lieu thereof a new subsection (o), to read as follows:
(o) To confirm the ongoing permanent total disability status
of the claimant
, the commission may elect to have any recipient of
a permanent total disability award undergo one independent medical
examination during each of the first five years that the permanent
total disability award is paid and one independent medical
examination during each three-year period thereafter until the
claimant reaches the age of seventy years: Provided, That the
commission may elect to have any recipient of a permanent total
disability award under the age of fifty years undergo one
independent medical examination during each year that the permanent
total disability award is paid until the recipient reaches the age
of fifty years, and thereafter one independent medical examination
during each three-year period thereafter until the claimant reaches
the age of seventy years.;
On page two hundred forty-three, section seven-a, lines three and four, by striking out the words "but shall not be liable by
offset or otherwise for the excess paid";
On page three hundred eleven, section nine, line one, by
striking out the word "September" and inserting in lieu thereof the
word "October";
On page three hundred eleven, section nine, lines eighteen and
nineteen, by striking out the words "and in article one-b, chapter
fifty-one of this code";
On page three hundred twelve, section eleven, subsection (c),
by striking out the word "judges" and inserting in lieu thereof the
word "members";
On page three hundred twelve, section eleven, subsection (d),
by striking out the word "judges" and inserting in lieu thereof the
word "members";
On page three hundred twelve, section eleven, subsection (d),
after the word "party." by adding the following: The members of
the board of review shall be paid an annual salary of eighty-five
thousand dollars. Members are entitled to be reimbursed for actual
and necessary travel expenses incurred in the discharge of official
duties in a manner consistent with the guidelines of the travel
management office of the department of administration.;
On page three hundred twelve, section eleven, subsection (g),
by striking out the words "are, or who represent" and inserting in
lieu thereof the words "is, or who represents";
On page three hundred twelve, section eleven, subsection (i),
after the words "appointments, one" by striking out the word "judge" and inserting in lieu thereof the word "member";
On page three hundred twelve, section eleven, subsection (i),
after the words "six; one" by striking out the word "judge" and
inserting in lieu thereof the word "member";
On page three hundred twelve, section eleven, subsection (i),
after the words "eight; and one" by striking out the word "judge"
and inserting in lieu thereof the word "member";
On page three hundred twelve, section eleven, subsection (j),
by striking out the word "judge" and inserting in lieu thereof the
word "member";
On page three hundred twelve, section eleven, subsection (k),
after the words "(k) No" by striking out the word "judge" and
inserting in lieu thereof the word "member";
On page three hundred twelve, section eleven, subsection (k),
after the words "requires the" by striking out the word "judge" and
inserting in lieu thereof the word "member";
On page three hundred twelve, section eleven, subsection (k),
after the word " office. No" by striking out the word "judge" and
inserting in lieu thereof the word "member";
On page three hundred twelve, section eleven, subsection (m),
after the word "its" by striking out the word "judges" and
inserting in lieu thereof the word "members";
On page three hundred twelve, section eleven, subsection (m),
after the word "be" by striking out the words "chief judge" and
inserting in lieu thereof the word "chairman";
On page three hundred twelve, section eleven, subsection (m), after the words "absence of the" by striking out the words "chief
judge" and inserting in lieu thereof the word "chairman";
On page three hundred twelve, section eleven, subsection (m),
after the word "other" by striking out the word "judge" and
inserting in lieu thereof the word "member";
On page three hundred twelve, section eleven, subsection (m),
after the words "designated by the" by striking out the word
"judges" and inserting in lieu thereof the word "members";
On page three hundred twelve, section eleven, subsection (m),
after the word "as" by striking out the words "chief judge" and
inserting in lieu thereof the word "chairman";
On page three hundred twelve, section eleven, subsection (p),
by striking out the words "during term and in vacation";
On page three hundred twelve, section eleven, subsection (p),
by striking out the words "chief judge" and inserting in lieu
thereof the word "chairman";
On page three hundred twelve, section eleven, subsection (r),
by striking out the word "judge" and inserting in lieu thereof the
word "member";
On page three hundred twelve, section twelve, subsection (a),
after the word "no" by striking out the word "such";
On page three hundred twelve, section twelve, subsection (a),
after the word "allowed," by striking out the word "such" and
inserting in lieu thereof the word "the";
On page three hundred twelve, section twelve, subsection (a),
by striking out the words "being hereby declared to be" and inserting in lieu thereof the word "is";
On page three hundred twelve, section twelve, subsection (a),
after the word "to" by striking out the word "such";
On page three hundred twelve, section twelve, subsection (a),
after the word "jurisdictional" by striking out the semicolon and
the words "and the" and inserting in lieu thereof a period and the
word "The";
On page three hundred twelve, section twelve, subsection (d),
by striking out the word "therein";
On page three hundred twelve, section twelve, subsection (d),
after the word "take" by striking out the word "such";
On page three hundred twelve, section twelve, subsection (d),
after the word "board" by striking out the comma and the words "and
shall take the same";
On page three hundred twelve, section twelve, subsection (d),
after the word "case" by striking out the comma and the word
"giving" and inserting in lieu thereof a period and the words "The
chief administrative law judge shall give";
On page three hundred twelve, section twelve, subsection (d),
after the words "notice of" by striking out the word "such" and
inserting in lieu thereof the word "the";
On page three hundred twelve, section twelve, subsection (d),
after the word "evidence" by striking out the words "shall be" and
inserting in lieu thereof the word "is";
On page three hundred twelve, section twelve, subsection (d),
after the words "completion of" by striking out the word "such" and inserting in lieu thereof the word "a";
On page three hundred twelve, section twelve, subsection (d),
after the words "law judge" by striking out the comma and the word
"which" and inserting in lieu thereof a period and the word "The";
On page three hundred twelve, section twelve, subsection (d),
by striking out the words "like manner as in the first instance"
and inserting in lieu thereof the words "the same manner as other
appeals";
On page three hundred twelve, section twelve, subsection (d),
after the word "following" by striking out the word "such";
On page three hundred twelve, section fifteen, subsection (a),
by striking out the words "being hereby declared to be" and
inserting in lieu thereof the word "is";
On page three hundred twelve, section fifteen, subsection (a),
after the words "receipt of" by striking out the word "such" and
inserting in lieu thereof the word "the";
On page three hundred twelve, section fifteen, subsection (a),
by striking out the words "And if" and inserting in lieu thereof
the words "If review is";
On page three hundred twelve, section fifteen, subsection (a),
after the word "before" by striking out the word "such" and
inserting in lieu thereof the word "an";
On page three hundred twelve, section fifteen, subsection (a),
by striking out the word "thereon";
On page three hundred twelve, section fifteen, subsection (a),
after the words "same. If a review" by striking out the word "be" and inserting in lieu thereof the word "is";
On page three hundred twelve, section fifteen, subsection (a),
after the words "certified question" by striking out the word "be"
and inserting in lieu thereof the word "is";
On page three hundred twelve, section fifteen, subsection (a),
after the words "mail. If a review" by striking out the word "be"
and inserting in lieu thereof the word "is";
On page three hundred twelve, section fifteen, subsection (a),
after the word "Every" by striking out the word "such";
On page three hundred twelve, section fifteen, subsection (a),
after the word "for" by striking out the word "such" and inserting
in lieu thereof the word "that";
On page three hundred twelve, section fifteen, subsection (a),
after the word "matter" by striking out the word "so";
On page three hundred twelve, section fifteen, subsection (a),
by striking out the word "division" and inserting in lieu thereof
the word "commission";
On page three hundred twelve, section fifteen, subsection (a),
after the words "The cost of" by striking out the word "such" and
inserting in lieu thereof the word "the";
On page three hundred twelve, section fifteen, subsection (a),
by striking out the words "be unsuccessful, and if" and inserting
in lieu thereof the words "is unsuccessful. If";
On page three hundred twelve, section fifteen, subsection (a),
after the words "case the latter" by striking out the word "be" and
inserting in lieu thereof the word "is";
On page three hundred twelve, section fifteen, subsection (a),
by striking out the words "be unsuccessful, such" and inserting in
lieu thereof the words "is unsuccessful, the";
On page three hundred twelve, section fifteen, by striking out
subsection (b) in its entirety and inserting in lieu thereof the
following:
(b) In reviewing a decision of the board of review, the
supreme court of appeals shall consider the record provided by the
board and give deference to the board's findings, reasoning and
conclusions, in accordance with subsections (c) and (d) of this
section.
_____(c) If the decision of the board represents an affirmation of
a prior ruling by both the commission and the office of judges that
was entered on the same issue in the same claim, the decision of
the board may be reversed or modified by the supreme court of
appeals only if the decision is in clear violation of
constitutional or statutory provision, is clearly the result of
erroneous conclusions of law, or is based upon the board's material
misstatement or mischaracterization of particular components of the
evidentiary record. The court may not conduct a de novo re-
weighing of the evidentiary record. If the court reverses or
modifies a decision of the board pursuant to this subsection, it
shall state with specificity the basis for the reversal or
modification and the manner in which the decision of the board
clearly violated constitutional or statutory provisions, resulted
from erroneous conclusions of law, or was based upon the board's material misstatement or mischaracterization of particular
components of the evidentiary record.
_____(d) If the decision of the board effectively represents a
reversal of a prior ruling of either the commission or the office
of judges that was entered on the same issue in the same claim, the
decision of the board may be reversed or modified by the supreme
court of appeals only if the decision is in clear violation of
constitutional or statutory provisions, is clearly the result of
erroneous conclusions of law, or is so clearly wrong based upon the
evidentiary record that even when all inferences are resolved in
favor of the board's findings, reasoning and conclusions, there is
insufficient support to sustain the decision. The court may not
conduct a de novo re-weighing of the evidentiary record. If the
court reverses or modifies a decision of the board pursuant to this
subsection, it shall state with specificity the basis for the
reversal or modification and the manner in which the decision of
the board clearly violated constitutional or statutory provisions,
resulted from erroneous conclusions of law, or was so clearly wrong
based upon the evidentiary record that even when all inferences are
resolved in favor of the board's findings, reasoning and
conclusions, there is insufficient support to sustain the
decision.;
On page three hundred twenty, line nineteen, by striking out
the section caption and inserting in lieu thereof a new section
caption, to read as follows:
§23-5-18. Termination of the workers' compensation appeal board and the workers' compensation board of review.;
On page three hundred twenty, section eighteen, lines twenty-
five through twenty-seven, by striking out the words "the
provisions of sections ten, eleven, twelve, fourteen and fifteen of
this article shall be of no further force and effect,";
On page three hundred twenty-one, section eighteen, lines two
and three, by striking out the words "intermediate court of appeals
created in article one-b, chapter fifty-one of this code." and
inserting in lieu thereof the following: board of review.
Pursuant to the provisions of article ten, chapter four of
this code, the workers' compensation board of review shall continue
to exist until the first day of July, two thousand nine, unless
sooner terminated, continued or reestablished by act of the
Legislature.;
On pages three hundred twenty-seven through three hundred
thirty-three, by striking out article one-b, chapter fifty-one in
its entirety;
And,
On pages one through three, by striking out the enacting
section and inserting in lieu thereof a new enacting section, to
read as follows:
That sections one, two, three, four, five, six and seven,
article three, chapter twenty-one-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be repealed; that
section five-b, article two, chapter twenty-three of said code be
repealed; that section seven, article four-a of said chapter be repealed; that section thirty-three-d, article three, chapter five-
a of said code be amended and reenacted; that sections four and
five, article three, chapter five-b of said code be amended and
reenacted; that section one, article two, chapter five-f of said
code be amended and reenacted; that section seven, article twelve,
chapter eleven of said code be amended and reenacted; that section
four, article one-a, chapter twelve of said code be amended and
reenacted; that section six, article six of said chapter be amended
and reenacted; that section ten, article two, chapter fifteen of
said code be amended and reenacted; that section fifteen, article
one, chapter sixteen of said code be amended and reenacted; that
section three, article twenty-nine-d of said chapter be amended and
reenacted; that section three, article thirty-six of said chapter
be amended and reenacted; that section twenty-six, article nine-a,
chapter eighteen of said code be amended and reenacted; that
section twelve-a, article ten-a of said chapter be amended and
reenacted; that section two, article ten-k of said chapter be
amended and reenacted; that section three, article three-a, chapter
twenty-one of said code be amended and reenacted; that section
four, article one, chapter twenty-one-a of said code be amended and
reenacted; that sections six, six-c and thirteen, article two of
said chapter be amended and reenacted; that section eleven, article
ten of said chapter be amended and reenacted; that section eight,
article three, chapter twenty-two of said code be amended and
reenacted; that sections one, two, three, four, five, six, seven,
eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, seventeen and eighteen, article one, chapter twenty-three of said
code be amended and reenacted; that said article be further amended
by adding thereto eight new sections, designated sections one-a,
one-b, one-c, one-d, one-e, one-f, four-a and nineteen; that
sections one, one-c, one-d, two, three, four, five, five-a, five-c,
five-d, six, nine, ten, eleven, twelve, thirteen, fourteen,
fifteen, sixteen and seventeen, article two of said chapter be
amended and reenacted; that section one, article two-a of said
chapter be amended and reenacted; that sections one, two and three,
article two-b of said chapter be amended and reenacted; that
sections one, one-a, two, three and five, article three of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section six;
that sections one, one-a, one-b, one-c, one-d, one-e, two, three,
three-b, three-c, four, five, six, six-a, six-b, six-d, seven,
seven-a, seven-b, eight, eight-a, eight-b, eight-c, nine, nine-b,
ten, eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b,
sixteen, sixteen-a, seventeen, eighteen, twenty, twenty-two,
twenty-three, twenty-four and twenty-five, article four of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section one-g;
that sections one, three, five, six and eight, article four-a of
said chapter be amended and reenacted; that sections two, five, six
and seven, article four-b of said chapter be amended and reenacted;
that said article be further amended by adding thereto a new
section, designated section eight-b; that sections two, three, four and five, article four-c of said chapter be amended and reenacted;
that sections one, two, three, four, five, six, seven, eight, nine,
ten, eleven, twelve, fifteen, seventeen and eighteen, article five
of said chapter be amended and reenacted; that section two, article
eight, chapter twenty-six of said code be amended and reenacted;
that sections one hundred twenty-five and one hundred thirty-one,
article eighteen, chapter forty-eight of said code be amended and
reenacted; and that sections twenty-four-e, twenty-four-f and
twenty-four-g, article three, chapter sixty-one of said code be
amended and reenacted, all to read as follows:
.
On motion of Senator Bowman, the following amendment to the
House of Delegates amendments to the bill (Eng. S. B. No. 2013) was
next reported by the Clerk and adopted:
O
n page one hundred ninety-nine, section three, line two,
after the word "commission" by changing the period to a colon and
adding the following proviso: Provided, That notwithstanding any
other provision of this code to the contrary, the commission shall
promulgate in accordance with the provisions of article three,
chapter twenty-nine-a of this code a rule effectuating the
provisions of this section relating to the provision of health care
through managed health care plans or programs.
On motions of Senators Tomblin (Mr. President), Sprouse and
McCabe, the following amendment to the House of Delegates amendment
to the title of the bill was reported by the Clerk and adopted:
On pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 2013--A Bill
to repeal sections one, two,
three, four, five, six and seven, article three, chapter twenty-
one-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal section five-b, article two,
chapter twenty-three of said code; to repeal section seven, article
four-a of said chapter; to amend and reenact section thirty-three-
d, article three, chapter five-a of said code; to amend and reenact
sections four and five, article three, chapter five-b of said code;
to amend and reenact section one, article two, chapter five-f of
said code; to amend and reenact section seven, article twelve,
chapter eleven of said code; to amend and reenact section four,
article one-a, chapter twelve of said code; to amend and reenact
section six, article six of said chapter; to amend and reenact
section ten, article two, chapter fifteen of said code; to amend
and reenact section fifteen, article one, chapter sixteen of said
code; to amend and reenact section three, article twenty-nine-d of
said chapter; to amend and reenact section three, article thirty-
six of said chapter; to amend and reenact section twenty-six,
article nine-a, chapter eighteen of said code; to amend and reenact
section twelve-a, article ten-a of said chapter; to amend and
reenact section two, article ten-k of said chapter; to amend and
reenact section three, article three-a, chapter twenty-one of said
code; to amend and reenact section four, article one, chapter
twenty-one-a of said code; to amend and reenact sections six, six-c
and thirteen, article two of said chapter; to amend and reenact
section eleven, article ten of said chapter; to amend and reenact section eight, article three, chapter twenty-two of said code; to
amend and reenact sections one, two, three, four, five, six, seven,
eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,
seventeen and eighteen, article one, chapter twenty-three of said
code; to further amend said article by adding thereto eight new
sections, designated sections one-a, one-b, one-c, one-d, one-e,
one-f, four-a and nineteen; to amend and reenact sections one, one-
c, one-d, two, three, four, five, five-a, five-c, five-d, six,
nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and
seventeen, article two of said chapter; to amend and reenact
section one, article two-a of said chapter; to amend and reenact
sections one, two and three, article two-b of said chapter; to
amend and reenact sections one, one-a, two, three and five, article
three of said chapter; to further amend said article by adding
thereto a new section, designated section six; to amend and reenact
sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-
b, three-c, four, five, six, six-a, six-b, six-d, seven, seven-a,
seven-b, eight, eight-a, eight-b, eight-c, nine, nine-b, ten,
eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen,
sixteen-a, seventeen, eighteen, twenty, twenty-two, twenty-three,
twenty-four and twenty-five, article four of said chapter; to
further amend said article by adding thereto a new section,
designated section one-g; to amend and reenact sections one, three,
five, six and eight, article four-a of said chapter; to amend and
reenact sections two, five, six and seven, article four-b of said
chapter; to further amend said article by adding thereto a new section, designated section eight-b; to amend and reenact sections
two, three, four and five, article four-c of said chapter; to amend
and reenact sections one, two, three, four, five, six, seven,
eight, nine, ten, eleven, twelve, fifteen, seventeen and eighteen,
article five of said chapter; to amend and reenact section two,
article eight, chapter twenty-six of said code; to amend and
reenact sections one hundred twenty-five and one hundred thirty-
one, article eighteen, chapter forty-eight of said code; and to
amend and reenact sections twenty-four-e, twenty-four-f and twenty-
four-g, article three, chapter sixty-one of said code, all relating
to workers' compensation generally; repealing provisions relating
to the compensation programs performance council; repealing
provisions relating to default settlement; repealing provisions
relating to employees and payment of salaries from the disabled
workmen's relief fund; removing workers' compensation from the
bureau of employment programs; directing certain reports to be
filed quarterly; providing legislative findings; creating workers'
compensation commission as an independent agency assuming all
duties of division; creating the workers' compensation board of
managers; establishing composition of board; establishing
qualifications for membership; establishing appointment procedures
for members; providing for compensation and travel expenses;
setting forth the powers and duties of board; establishing
position, powers and duties of executive director; establishing
qualifications; establishing procedure for removal; providing
violator system to prohibit certain persons from obtaining state licenses, certificates and permits in certain circumstances;
providing for payment withholding and interception of moneys of
certain employers; providing penalties for failure to withhold or
intercept payments; authorizing interagency agreements for the
bureau of employment programs and workers' compensation commission;
providing for the adoption of workers' compensation rules by
commission; transferring assets and contracts; establishing fraud
and abuse investigation and prosecution unit; providing powers and
duties of unit; providing for legislative oversight of commission;
providing for salaries and expenses of commission; requiring bond
and insurance for the executive director and associate director;
authorizing the executive director to hire an associate director
and other employees; providing for associate director to assume
authority in absence of executive director; authorizing certain
commission employees to administer oaths; providing for issuance
and enforcement of agency subpoenas; providing additional civil
remedies for violations of law; allowing certain elected local
officials not to participate in workers' compensation; providing
that limited liability companies may elect to not provide workers'
compensation coverage to certain members; clarifying that
extraction of natural resources is provision of services; requiring
promulgation of rule to prevent contractors from avoiding liability
for workers' compensation premiums; creating ongoing duty to
provide information to commission; authorizing rate reductions for
safety and loss prevention and drug-free workplace initiatives;
requiring rates, surcharges and assessments to be financially sound and sufficient to meet needs of the funds; establishing rate caps;
authorizing the commission to require employers to pay premium
taxes more often than quarterly; extending time for commission to
collect from defaulting or delinquent employers; establishing
statute of limitations; allowing specified groups of employers to
self-insure their obligations to the commission; requiring self-
insured employers to administer claims; requiring self-insured
employers to comply with the law and commission rules; establishing
components of self-insured premium tax; requiring employers that
self-insure second injury benefits to continue to be responsible
for the claims; providing that self-insured employers who fail to
make benefit payments are in default in certain circumstances;
authorizing the commission to determine self-insured rates;
authorizing self-insured employers to obtain third-party insurance
for catastrophic claims and requiring copy of policy; prohibiting
self-insured employers from contracting with third-party
administrators who have not been approved by the commission;
allowing for subrogation of medical benefits and authorizing
reasonable attorney fees and reasonable portion of costs;
eliminating second injury awards and the second injury reserve fund
for certain claims; providing for management of the deficit;
authorizing emergency fiscal measures; reporting requirements of
self-insurers; requiring commission to adopt standards for
evaluation of whole-body impairment with regard to certain
occupational diseases; providing an expedited appeal to the office
of judges where self-insured denies compensability; requiring assessment of claimant's return-to-work potential; providing
assistance in return-to-work efforts; authorizing repayment of
overpayments from future benefits and providing for liability of
attorney for certain fees and expenses; prohibiting a claimant from
receiving certain workers' compensation benefits and private
benefits in certain circumstances; requiring award of permanent
partial disability benefits be made as expeditiously as possible;
requiring medical providers to submit timely requests for payment;
authorizing certain employers with managed health care plans to
require employees to use the plan for treatment of compensable
injuries; exceptions; authorizing the commission to establish
managed health care plans;
requiring commission to propose
legislative rules governing use of managed health care plans;
providing for weighing of evidence; providing for suspension or
termination of health care providers; requiring commission to set
standards for medical management of claims; providing benefits for
cemetery expenses; eliminating annual increases in benefits;
reducing certain benefit rates; establishing new criteria for
eligibility for benefits for certain injuries and diseases;
increasing to fifty percent the percentage of whole body impairment
for eligibility for consideration for a permanent total disability
award; establishing internal operative dates; requiring the
executive director to promulgate a rule to establish requirements
for an application for permanent total disability benefits;
specifying application required for claim for permanent total
disability benefits; providing for the establishment of an onset date for permanent total disability benefits; providing for
increase of minimum aggregation of percentages of permanent
disability or medical impairment prior to applying for permanent
total disability award; providing for prior disability awards
excluded from calculation; providing that ability to acquire skills
may be considered in permanent total disability determination;
providing that neither certain proximity of employment nor
comparison of wages may be considered when determining permanent
total disability; terminating permanent total disability benefits
at age seventy in certain circumstances; eliminating the five-
percent presumptive award of occupational pneumoconiosis;
authorizing application for occupational pneumoconiosis benefits
within three years of determination of impairment; providing that
the commission may suspend benefits to a claimant for refusing,
without good cause, treatment or examination by a physician;
providing for a trial work period; modifying provisions for
vocational rehabilitation services; authorizing reopening and
review of claims; establishing duty to provide information to
commission; expanding monitoring in injury claims; authorizing
suspension or termination of benefits in certain circumstances;
removing certain offset provisions; providing certain incentives
for premium discounts; providing that certain portion of rate
increase not be subject to collection; expanding sources from which
overpayment of benefits and awards may be collected; providing for
further examinations of certain disability benefit recipients;
providing for transfer of certain funds from and to coal-workers' pneumoconiosis fund; permitting certain employers to self-insure
certain obligations; providing for the settlement of claims;
providing a statute of limitations on employer liability in certain
circumstances; requiring certain security or bond from employers;
administration of claims by self-insured employers; requiring
certain additional amounts to be paid to the commission by
employers; providing circumstances in which employers are in
default in obligations to the commission; requiring commission
approval of employer use of third-party administrator; requiring
electronic transfer of funds; providing time limitation for certain
payments; authorizing rule to permit employers to contract with
certain providers of services in certain circumstances; providing
for payments of certain benefits during participation in certain
rehabilitation plans; providing for the termination of or
limitation on certain benefits in certain circumstances; requiring
rules for certain administrative functions; requiring expedited
hearings in certain circumstances; providing for legislative rule
making in certain circumstances; providing for finality of certain
administrator decisions; providing standards of review; providing
for mediation; providing for removal of chief administrative law
judge; providing for appeals; establishing time frames for appeals;
establishing standards for appeal; creating the workers'
compensation board of review; authorizing salary for members;
providing for appointment of members of board; establishing
qualifications of members of the board; establishing position of
chairman; authorizing rules of procedure; authorizing clerk and other employees; providing for remand of cases; providing for
standards for appeals to the West Virginia supreme court of
appeals; providing civil and criminal penalties and judgments for
restitution; making technical corrections and removing archaic
language throughout; and providing conforming amendments.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Senate Bill No. 2013, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Deem, Edgell, Facemyer, Guills, Harrison, Helmick,
Jenkins, Kessler, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse,
Weeks and Tomblin (Mr. President)--26.
The nays were: Bailey, Chafin, Dempsey, Fanning, Hunter, Love
and White--7.
Absent: Unger--1.
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. 2013) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Deem, Edgell, Facemyer, Guills, Harrison, Helmick, Jenkins,
Kessler, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Weeks and
Tomblin (Mr. President)--26.
The nays were: Bailey, Chafin, Dempsey, Fanning, Hunter, Love
and White--7.
Absent: Unger--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 2013) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of a meeting of a standing committee of
the Senate,
On motion of Senator Chafin, the Senate recessed until 4:45
p.m. today.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, unanimous consent being granted,
returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 2016 (originating in the Committee on
Finance)--A Bill
to amend section nine, Title II, chapter twenty,
acts of the Legislature, regular session, two thousand three, by
making a new appropriation of public moneys out of the treasury in
accordance with section fifty-one, article VI of the constitution
making appropriations from surplus accrued certain amounts within
the general revenue fund.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Chafin, unanimous consent being
granted, the bill (S. B. No. 2016) 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.
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: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Facemyer and Unger--2.
The bill was read a second time and ordered to engrossment and
third reading.
Engrossed Senate Bill No. 2016 was then read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Facemyer and Unger--2.
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. 2016) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Facemyer and Unger--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 2016) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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. 213, Supplementary appropriation of public
moneys out of moneys remaining as an unappropriated balance in the state fund, general revenue, to the department of education.
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. 213) 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.
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: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Facemyer and Unger--2.
The bill (Eng. H. B. No. 213) was then read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the total appropriation for the fiscal year ending the
thirtieth day of June, two thousand four, to fund 0313, fiscal year
2004, organization 0402, be supplemented and increased in the
existing and new line items as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
DEPARTMENT OF EDUCATION
34-State Department of Education
(WV Code Chapters 18 and 18A)
Fund 0313 FY 2004 Org 0402
_______________________________________________________ General
Act- Revenue
ivity Funds
4 Unclassified (R) 099 $ 900,000
26a Safe Schools 143 1,000,000
And, that the total appropriation for the fiscal year ending
the thirtieth day of June, two thousand four, to fund 0294, fiscal
year 2004, organization 0431, be supplemented and increased in new
line items as follow:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
DEPARTMENT OF EDUCATION AND THE ARTS
40-Department of Education and the Arts-
Office of the Secretary
(WV Code Chapter 5F)
Fund 0294 FY 2004 Org 0431
_______________________________________________________ General
Act- Revenue
ivity Funds
7a Governor's Honors Academy
and School for the Arts 030 $ 410,000
7b Teacher Education Partnerships 576 600,000
And, that the total appropriation for the fiscal year ending
the thirtieth day of June, two thousand four, to fund 0256, fiscal
year 2004, organization 0307, be supplemented and increased in the
existing line item as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
BUREAU OF COMMERCE
73-West Virginia Development Office
(WV Code Chapter 5B)
Fund 0256 FY 2004 Org 0307
_______________________________________________________ General
Act- Revenue
ivity Funds
39 Local Economic
40 Development Assistance 819 $ 900,000
And, that the total appropriation for the fiscal year ending
the thirtieth day of June, two thousand four, to fund 0589, fiscal
year 2004, organization 0441, be supplemented and increased in a
new line item as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
HIGHER EDUCATION POLICY COMMISSION
85-Higher Education Policy Commission-
Administration-
Control Account
(WV Code Chapter 18B)
Fund 0589 FY 2004 Org 0441
_______________________________________________________ General
Act- Revenue
ivity Funds
10a HEAPS Grant Program 867 1,000,000
And, that the total appropriation for the fiscal year ending
the thirtieth day of June, two thousand four, to fund 0586, fiscal
year 2004, organization 0442, be supplemented and increased in the
existing and new line items as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
HIGHER EDUCATION POLICY COMMISSION
86-Higher Education Policy Commission-
System-
Control Account
(WV Code Chapter 18B)
Fund 0586 FY 2004 Org 0442
_______________________________________________________ General
Act- Revenue
ivity Funds
40 West Virginia University -
41 Potomac State 994 $ 100,000
49a Tuition offset for Freestanding
49b Community and Technical
49c Colleges 032 300,000
And, that the total appropriation for the fiscal year ending
the thirtieth day of June, two thousand four, to fund 0591, fiscal
year 2004, organization 0441, be supplemented and increased in new
and existing line items as follows:
TITLE II - APPROPRIATIONS.
Section 1. Appropriations from general revenue.
HIGHER EDUCATION POLICY COMMISSION
88-Higher Education Policy Commission-
Legislative-
Funding Priorities
Control Account
(WV Code Chapter 18B)
Fund 0591 FY 2004 Org 0441
_______________________________________________________ General
Act- Revenue
ivity Funds
2 Research Challenge 502 1,000,000
2a Higher Education - Special Projects 488 $ 865,000
The purpose of this supplementary appropriation bill is to
increase items of appropriations in the aforesaid accounts for the designated spending units for expenditure during fiscal year two
thousand four.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 213) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Weeks, White and Tomblin (Mr.
President)--31.
The nays were: Sprouse--1.
Absent: Facemyer and Unger--2.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 213) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 213--A Bill making a supplementary
appropriation of public moneys out of the treasury from the balance
of moneys remaining as an unappropriated balance in the state fund,
general revenue, to the department of education - state department
of education, fund 0313, fiscal year 2004, organization 0402, to
the department of education and the arts - office of the secretary, fund 0294, fiscal year 2004, organization 0431, bureau of commerce
- West Virginia development office, fund 0256, fiscal year 2004,
organization 0307, to the higher education policy commission -
administration - control account, fund 0589, fiscal year 2004,
organization 0441, higher education policy commission - system -
control account, fund 0586, fiscal year 2004, organization 0442,
and the higher education policy commission - legislative - funding
priorities - control account, fund 0591, fiscal year 2004,
organization 0441, all supplementing and amending the
appropriations for the fiscal year ending the thirtieth day of
June, two thousand four.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Weeks, White and Tomblin (Mr. President)--31.
The nays were: Sprouse--1.
Absent: Facemyer and Unger--2.
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. 213) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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. 219, Supplementary appropriation to a new
item of appropriation designated to the governor's office - jobs
and growth tax relief reconciliation act of 2003.
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. 219) 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.
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: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Facemyer and Unger--2.
The bill (Eng. H. B. No. 219) was then read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That chapter twenty, acts of the Legislature, regular session,
two thousand three, known as the budget bill, be supplemented and
amended by adding to Title II, section six thereof the following:
TITLE II - APPROPRIATIONS.
Sec. 6. Appropriations of federal funds.
EXECUTIVE
246a-Governor's Office-
Jobs and Growth Tax Relief
Reconciliation Act of 2003
(WV Code Chapter 5)
Fund 8859 FY 2004 Org 0100
Act- Federal
ivity Funds
1 Unclassified - Total - Transfer 402 $ 61,493,122
From the above appropriation for unclassified - total -
transfer a total of $14,000,000 shall be transferred to the
workers' compensation fund, fund 3440, organization 0322,
$19,418,122 shall be transferred to the tax reduction and federal
funding increased compliance fund, fund 1732, organization 2300,
and a total of $28,075,000 shall be transferred to the general
revenue fund.
The purpose of this supplementary appropriation bill is to supplement this account in the budget act for the fiscal year
ending the thirtieth day of June, two thousand four, by providing
for a new item of appropriation to be established therein to
appropriate federal funds for the designated spending unit for
expenditure during the fiscal year two thousand four.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 219) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Facemyer and Unger--2.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 219) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 219--A Bill
making a supplementary
appropriation of federal funds out of the treasury from the balance
of federal moneys remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand four, to a new item
of appropriation designated to the governor's office - jobs and
growth tax relief reconciliation act of 2003, fund 8859, fiscal
year 2004, organization 0100, and transferring certain amounts from
that fund to the workers' compensation fund, fund 3440, fiscal year
2004, organization 0322; to the tax reduction and federal funding
increased compliance fund, fund 1732, fiscal year 2004,
organization 2300; and to the general revenue fund, all
supplementing and amending chapter twenty, acts of the Legislature,
regular session, two thousand three, known as the budget bill.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Facemyer and Unger--2.
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. 219) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
[Clerk's Note: Senate Executive Message No. 1, dated June 10, 2003, was not reported by the Senate.]
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
June 11, 2003
Senate Executive Message No. 2
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, Workforce Investment Council, Robert B. Bahr,
Moorefield, Hardy County, for the term ending May 22, 2005.
2. For Member, Workforce Investment Council, Stan Cavendish,
Charleston, Kanawha County, for the term ending May 22, 2005.
3. For Member, Workforce Investment Council, Jimmy Colombo,
Parkersburg, Wood County, for the term ending May 22, 2005.
4. For Member, Workforce Investment Council, Hal Foss,
Willow Island, Pleasants County, for the term ending May 22, 2005.
5. For Member, Workforce Investment Council, Sharon Hall,
Charleston, Kanawha County, for the term ending May 22, 2005.
6. For Member, Workforce Investment Council, Homer Kincaid, Morgantown, Monongalia County, for the term ending May 22, 2005.
7. For Member, Workforce Investment Council, Nancy
Kissinger, Beckley, Raleigh County, for the term ending May 22,
2005.
8. For Member, Workforce Investment Council, The Honorable
Paul McKown, Charleston, Kanawha County, for the term ending May
22, 2005.
9. For Member, Workforce Investment Council, Leslie W.
Melton, Charleston, Kanawha County, for the term ending May 22,
2005.
10. For Member, Workforce Investment Council, Eric Peters,
Sistersville, Tyler County, for the term ending May 22, 2005.
11. For Member, Workforce Investment Council, Rodney Rogers,
Beverly, Randolph County, for the term ending May 22, 2005.
12. For Member, Workforce Investment Council, Lydotta Taylor,
Morgantown, Monongalia County, for the term ending May 22, 2005.
13. For Member, Workforce Investment Council, Joseph
Williams, Huntington, Cabell County, for the term ending May 22,
2005.
14. For Member, Workforce Investment Council, Jerry Berry,
Hinton, Summers County, for the term ending May 22, 2005.
15. For Member, Workforce Investment Council, Heather
Johnson, Lansing, Fayette County, for the term ending May 22, 2005.
16. For Member, Workforce Investment Council, Tim Dean,
Huntington, Cabell County, for the term ending May 22, 2005.
17. For Member, Workforce Investment Council, Roy Smith, Charleston, Kanawha County, for the term ending May 22, 2005.
18. For Member, Health Care Authority, Marilyn G. White,
Wheeling, Ohio County, for the term ending March 12, 2009.
19. For Member, Investment Management Board, Carlyle
Farnsworth, Wheeling, Ohio County, for the term ending January 31,
2009.
20. For Member, Investment Management Board, Patrick D.
Kelly, Charleston, Kanawha County, for the term ending January 31,
2009.
21. For Member, Radiologic Technology Board of Examiners, Dr.
Shawn D. Reesman, Daniels, Raleigh County, for the term ending June
30, 2005.
22. For Member, Radiologic Technology Board of Examiners,
Mark Wilcox, Charleston, Kanawha County, for the term ending June
30, 2005.
23. For Member, Radiologic Technology Board of Examiners,
Leah Jean Morris, Culloden, Cabell County, for the term ending June
30, 2005.
24. For Member, Public Port Authority, Jack Burlingame,
Ripley, Jackson County, for the term ending June 30, 2005.
25. For Commissioner, Division of Tourism, and Commissioner,
Bureau of Commerce, Betty Carver, Belle, Kanawha County, to serve
at the will and pleasure of the Governor.
26. For Secretary, Department of Environmental Protection,
Stephanie Timmermeyer, Charleston, Kanawha County, to serve at the
will and pleasure of the Governor.
27. For Member, Board of Pharmacy, Charles A. Burdette,
Buffalo, Putnam County, for the term ending June 30, 2007.
28. For Member, Consolidated Public Retirement Board, Everett
Gene Davis, Athens, Mercer County, for the term ending June 30,
2007.
29. For Member, Council on Aging, Elsie Sims, Bluefield,
Mercer County, appointed for the term ending June 30, 2006.
30. For Member, Council on Aging, Dottie L. Kellison,
Marlinton, Pocahontas County, appointed for the term ending June
30, 2006.
31. For Member, Council on Aging, Richard P. Lynch,
Shepherdstown, Jefferson County, for the term ending June 30, 2006.
32. For Member, Council on Aging, Mary Jo Brady, Buckhannon,
Upshur County, for the term ending June 30, 2003.
33. For Member, Council on Aging, Earl F. Jarvis, Logan,
Logan County, for the term ending June 30, 2003.
34. For Member, Board of Medicine, The Honorable Mary Pearl
Compton, Union, Monroe County, for the term ending September 30,
2007.
35. For Member, Board of Medicine, Orman Richard Bowyer,
Fairmont, Marion County, for the term ending September 30, 2007.
36. For Member, Housing Trust Fund Board of Directors, Sandra
J. Hamilton, Charleston, Kanawha County, for the term ending May
10, 2007.
37. For Member, Housing Trust Fund Board of Directors, Gail
Stilley, Chapmanville, Logan County, for the term ending May 10, 2003.
38. For Member, Board of Control for Southern Regional
Education, The Honorable Lloyd G. Jackson II, Hamlin, Lincoln
County, for the term ending June 30, 2004.
39. For Member, Contractor Licensing Board, Janet Whipkey,
Morgantown, Monongalia County, for the term ending June 30, 2006.
40. For Member, Board of Occupational Therapy, Paula Glavach
Sisler, Morgantown, Monongalia County, for the term ending December
31, 2005.
41. For Member, Board of Occupational Therapy, Martin
Douglas, Poca, Putnam County, for the term ending December 31,
2005.
42. For Member, Real Estate Commission, John Reed, Hurricane,
Putnam County, for the term ending June 30, 2007.
43. For Member, Archives and History Commission, Betty
Nutting, Wheeling, Ohio County, for the term ending June 30, 2004.
Notice of these appointments was previously provided to the
appropriate legislative staff at the time the appointments were
made.
Very truly yours,
Bob Wise,
Governor.
Which communication was received and referred to the Committee
on Confirmations and incorporated with the legislative nomination
received earlier this session; all to be considered as a special
order of business
under unfinished business.
Senator Tomblin (Mr. President) then laid before the Senate
the following communications from His Excellency, the Governor:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
June 13, 2003
Senate Executive Message No. 3
TO: The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I am respectfully withdrawing the following appointment from
Senate Executive Message No. 2 dated June 11, 2003:
38. For Member, Board of Control for Southern Regional
Education, The Honorable Lloyd G. Jackson II, Hamlin, Lincoln
County, for the term ending June 30, 2004.
It has been determined that this specific situation does not
require the Senate's advice and consent. Thank you for the
correction of your records.
Very truly yours,
Bob Wise,
Governor.
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
June 30, 2003
Senate Executive Message No. 4
TO: The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I am respectfully request that the following correction be
made from Senate Executive Message No. 2, Second Extraordinary
Session, dated June 11, 2003:
36. For Member, Housing Trust Fund Board of Directors, Sandra
J. Hamlin, Charleston, Kanawha County, for the term ending May 10,
2007.
Thank you for correcting your records.
Very truly yours,
Bob Wise,
Governor.
Which communications were received and referred to the
Committee on Confirmations.
The following communication from His Excellency, the Governor,
was reported by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
June 30, 2003
Senate Executive Message No. 5
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
The following amends and replaces the "FY 2004 Official
Estimate" "General Revenue Fund - Statement of Revenues by Source"
which I submitted to you on January 8, 2003, as part of my
Executive Budget Document for the fiscal year ending June 30, 2004:
General Revenue Fund
Statement of Revenues by Source
(Expressed in Thousands)
FY 2004
Official
Source of Revenue Estimate
Business and Occupation Tax $ 170,500
Consumers Sales Tax 937,200 1
Personal Income Tax 1,090,600 2
Liquor Profit Transfers 9,800
Racing Fees 3,000
Beer Tax and Licenses 8,500
Cigarette Tax 97,600 3
Estate Tax 7,100
Business Franchise Fees 1,900
Charter Tax 5,300
Use Tax 87,300 4
Property Transfer Tax 7,300
Property Tax 4,200
Insurance Tax 88,700 5
Departmental Collections 13,000 6
Corporate Net Income Tax -0- 7
Miscellaneous Transfers 500
Interest Income 15,000
Severance Tax 149,800 8
Business Franchise Tax -0- 9
Telecommunications Tax 11,500 10
Miscellaneous Receipts 2,500
Smokeless Tobacco Tax 5,200
HB 102 - Lottery Transfers 126,800
Video Lottery Transfers -0-
Liquor License Renewal -0-
Special Revenue Transfer 2,500
Corporate Income/Business Franchise Tax 167,500 11
JOBS/Growth Tax Relief - Transfer 28,075________12
Total $3,041,375________13
1 Revised from $ 941,100 to $ 937,200 - Decrease of $ 3,900.
2 Revised from 1,096,000 to 1,090,600 - Decrease of 5,400.
3 Revised from 95,100 to 97,600 - Increase of 2,500.
4 Revised from 83,000 to 87,300 - Increase of 4,300.
5 Revised from 92,300 to 88,700 - Decrease of 3,600.
6 Revised from 9,200 to 13,000 - Increase of 3,800.
7 Revised from 87,000 to -0- - Decrease of 87,000.
8 Revised from 148,000 to 149,800 - Increase of 1,800.
9 Revised from 99,000 to -0- - Decrease of 99,000.
10 Revised from 13,500 to 11,500 - Decrease of 2,000.
11 Revised from -0- to 167,500 - Increase of 167,500.
12 Revised from -0- to 28,075 - Increase of 28,075.
13 Revised from 3,034,300 to 3,041,375 - Increase of 7,075.
The following amends and replaces the "General Revenue Fund
Statement of Revenues, Expenditures and Changes in Cash Balance
(Expressed in Thousands)" which I submitted to you on January 8,
2003, as part of my Executive Budget Document for the fiscal year
ending June 30, 2004:
General Revenue Fund
Statement of Revenues, Expenditures and Changes in Cash Balance
(Expressed in Thousands)
Actual Cash Balance July 1, 2002 $ 197,264
LESS: 31 Day Disbursements (July 1, 2002 - July 31, 2002) $ 26,818
Accumulated Prior Year Reimbursements (July 1, 2002 - July 31, 2002) (14)
Prior Year Appropriations Forwarded _______150,716__________(177,520)
Accumulated Surplus from FY 2002 $ 19,744
LESS: Transfer to Revenue Shortfall Reserve Fund (Statutory) ________(9,872)
Surplus Balance $ 9,872
PLUS: Accumulated Prior Year Reimbursements (Aug. 1, 2002 - May 30, 2003) $ 217
Expirations to Unappropriated Surplus Balance (SB 2028) 8,300
Expirations to Unappropriated Surplus Balance (SB 3004) 20,372
Expirations to Unappropriated Surplus Balance (SB 662) 350
Expirations to Unappropriated Surplus Balance (HB 102) 2,000
Expirations to Unappropriated Surplus Balance (HB 103) 3,350
Expirations to Unappropriated Surplus Balance (
HB 3211) 1,370
Expirations to Unappropriated Surplus Balance (
HB 3215) 542
Expirations to Unappropriated Surplus Balance (
HB 3218) 295
Expiration to Unappropriated Surplus Balance (HB 214) 200__________ 36,996
Total Unappropriated Surplus Balance $ 46,868
LESS: Refund Adjustment $ 212
Surplus Appropriation (SB 2028) FY 2003 8,300
Surplus Appropriation (SB 2032) FY 2003 6,158
Surplus Appropriation (SB 3004) FY 2003 20,372
Surplus Appropriation (SB 662) FY 2003 350
Surplus Appropriation (HB 102) FY 2003
2,000
Surplus Appropriation (HB 103) FY 2003
3,350
Surplus Appropriation
(
HB 3211) FY 2003
5,058
Surplus Appropriation
(
HB 3215) FY 2003
541
Surplus Appropriation
(
HB 3218) FY 2003
295
Surplus Appropriation (HB 214) FY 2003 200________________ (46,836)
Unappropriated Surplus Balance $ 32
PLUS: Revenue Estimate FY 2003 $ 2,930,000
LESS: Regular Appropriations FY 2003 (2,929,869)________________ 131
Estimated Balance - June 30, 2003 $ 163
LESS: Transfer one-half to Revenue Shortfall Reserve Fund (Statutory) __(82)
Estimated Balance - June 30, 2003 $ 81
PLUS: Revised Revenue Estimate FY 2004 ________ 3,041,375
Estimated Balance $ 3,041,456
LESS: Regular Appropriations FY 2004 $ (3,033,964)
Supplemental Appropriations (HB 215) FY 2004 (334)
Recommended Supplemental Appropriation FY 2004 (7,075)__________ (3,041,373)
Estimated Balance June 30, 2004 $__83
This change is necessary in order to adjust the revenue
estimate downward by $21,000,000 due to passage of the Jobs and
Growth Tax Relief Reconciliation Act of 2003 and offset that
reduction by a transfer into the General Revenue Fund of
$21,000,000 from the federal funds received under the same
legislation. An additional $7,075,000 in funds from the same
legislation is also being transferred to allow the passage of a
supplemental bill of the same amount for various supplemental
appropriations.
Corporate Net Income Tax and Business Franchise Tax have also
been combined into one revenue source. Other minor adjustments
related to various revenue sources have also been included.
Thank you for your cooperation in this matter.
Sincerely,
Bob Wise,
Governor.
In compliance with Article VI, Section 51 of the Constitution,
the Senate consented to receive the foregoing amendments to the
Budget Bill, which were referred to the Committee on Finance.
On motion of Senator Chafin, the Senate recessed for five
minutes.
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 concurrence by that body in part to the Senate amendments to
the House of Delegates amendments, passage as amended, to take effect from passage, and announced that that body had refused to
concur in part to the Senate amendments to the House of Delegates
amendments to the bill and requested the Senate to recede
therefrom, as to
Eng. Senate Bill No. 2013, Relating to workers' compensation
generally.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The Clerk reported that the House of Delegates had refused to
concur in the following Senate amendment to the House of Delegates
amendments to the bill and requested the Senate to recede
therefrom:
On
page one hundred ninety-nine, section three, line two,
after the word "commission" by changing the period to a colon and
adding the following proviso: Provided, That notwithstanding any
other provision of this code to the contrary, the commission shall
promulgate in accordance with the provisions of article three,
chapter twenty-nine-a of this code a rule effectuating the
provisions of this section relating to the provision of health care
through managed health care plans or programs.
On motion of Senator Chafin, the Senate acceded to the request
of the House of Delegates and receded from the foregoing amendment
to the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 2013, as amended by deletion, was
then put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Deem, Edgell, Guills, Harrison, Helmick, Jenkins,
Kessler, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Weeks and
Tomblin (Mr. President)--25.
The nays were: Bailey, Chafin, Dempsey, Fanning, Hunter, Love
and White--7.
Absent: Facemyer and Unger--2.
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. 2013) passed.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Deem, Edgell, Guills, Harrison, Helmick, Jenkins, Kessler, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Weeks and Tomblin (Mr.
President)--25.
The nays were: Bailey, Chafin, Dempsey, Fanning, Hunter, Love
and White--7.
Absent: Facemyer and Unger--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 2013) takes effect from passage.
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. 2016, Making appropriation out of public
moneys to chapter twenty, acts of the Legislature.
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
from passage, of
Eng. House Bill No. 213, Supplementary appropriation of public
moneys out of moneys remaining as an unappropriated balance in the
state fund, general revenue, to the department of education.
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
from passage, of
Eng. House Bill No. 219, Supplementary appropriation to a new
item of appropriation designated to the governor's office - jobs
and growth tax relief reconciliation act of 2003.
At the request of Senator Snyder, and by unanimous consent,
Senator Snyder addressed the Senate regarding unfinished
legislative business.
At the request of Senator McCabe, unanimous consent being
granted, the Senate proceeded to the twelfth order of business.
Remarks were made by Senator McCabe.
The Senate then proceeded to the thirteenth order of business.
Senator Sharpe called attention to yesterday, Sunday, June 29,
2003, being the birthday of the senator from Marion and on behalf of the Senate extended belated felicitations and good wishes to
Senator Prezioso, with Senator Sharpe leading the members in
singing "Happy Birthday".
Pending announcement of a meeting of a standing committee of
the Senate,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Tuesday, July 1, 2003, at 11 a.m.
____________
TUESDAY, JULY 1, 2003
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Honorable Steve Harrison, a senator
from the eighth district.
Pending the reading of the Journal of Monday, June 30, 2003,
On motion of Senator Minard, 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 proceeded to the fourth order of business.
Senator Love, 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 June 11, 2003,
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, Workforce Investment Council, Robert B. Bahr,
Moorefield, Hardy County, for the term ending May 22, 2005.
2. For Member, Workforce Investment Council, Stan Cavendish,
Charleston, Kanawha County, for the term ending May 22, 2005.
3. For Member, Workforce Investment Council, Jimmy Colombo,
Parkersburg, Wood County, for the term ending May 22, 2005.
4. For Member, Workforce Investment Council, Hal Foss,
Willow Island, Pleasants County, for the term ending May 22, 2005.
5. For Member, Workforce Investment Council, Sharon Hall,
Charleston, Kanawha County, for the term ending May 22, 2005.
6. For Member, Workforce Investment Council, Homer Kincaid,
Morgantown, Monongalia County, for the term ending May 22, 2005.
7. For Member, Workforce Investment Council, Nancy
Kissinger, Beckley, Raleigh County, for the term ending May 22,
2005.
8. For Member, Workforce Investment Council, The Honorable
Paul McKown, Charleston, Kanawha County, for the term ending May
22, 2005.
9. For Member, Workforce Investment Council, Leslie W.
Melton, Charleston, Kanawha County, for the term ending May 22,
2005.
10. For Member, Workforce Investment Council, Eric Peters,
Sistersville, Tyler County, for the term ending May 22, 2005.
11. For Member, Workforce Investment Council, Rodney Rogers,
Beverly, Randolph County, for the term ending May 22, 2005.
12. For Member, Workforce Investment Council, Lydotta Taylor, Morgantown, Monongalia County, for the term ending May 22, 2005.
13. For Member, Workforce Investment Council, Joseph
Williams, Huntington, Cabell County, for the term ending May 22,
2005.
14. For Member, Workforce Investment Council, Jerry Berry,
Hinton, Summers County, for the term ending May 22, 2005.
15. For Member, Workforce Investment Council, Heather
Johnson, Lansing, Fayette County, for the term ending May 22, 2005.
16. For Member, Workforce Investment Council, Tim Dean,
Huntington, Cabell County, for the term ending May 22, 2005.
17. For Member, Workforce Investment Council, Roy Smith,
Charleston, Kanawha County, for the term ending May 22, 2005.
18. For Member, Health Care Authority, Marilyn G. White,
Wheeling, Ohio County, for the term ending March 12, 2009.
19. For Member, Investment Management Board, Carlyle
Farnsworth, Wheeling, Ohio County, for the term ending January 31,
2009.
20. For Member, Investment Management Board, Patrick D.
Kelly, Charleston, Kanawha County, for the term ending January 31,
2009.
21. For Member, Radiologic Technology Board of Examiners, Dr.
Shawn D. Reesman, Daniels, Raleigh County, for the term ending June
30, 2005.
22. For Member, Radiologic Technology Board of Examiners,
Mark Wilcox, Charleston, Kanawha County, for the term ending June
30, 2005.
23. For Member, Radiologic Technology Board of Examiners,
Leah Jean Morris, Culloden, Cabell County, for the term ending June
30, 2005.
24. For Member, Public Port Authority, Jack Burlingame,
Ripley, Jackson County, for the term ending June 30, 2005.
25. For Commissioner, Division of Tourism, and Commissioner,
Bureau of Commerce, Betty Carver, Belle, Kanawha County, to serve
at the will and pleasure of the Governor.
26. For Secretary, Department of Environmental Protection,
Stephanie Timmermeyer, Charleston, Kanawha County, to serve at the
will and pleasure of the Governor.
27. For Member, Board of Pharmacy, Charles A. Burdette,
Buffalo, Putnam County, for the term ending June 30, 2007.
28. For Member, Consolidated Public Retirement Board, Everett
Gene Davis, Athens, Mercer County, for the term ending June 30,
2007.
29. For Member, Council on Aging, Elsie Sims, Bluefield,
Mercer County, appointed for the term ending June 30, 2006.
30. For Member, Council on Aging, Dottie L. Kellison,
Marlinton, Pocahontas County, appointed for the term ending June
30, 2006.
31. For Member, Council on Aging, Richard P. Lynch,
Shepherdstown, Jefferson County, for the term ending June 30, 2006.
32. For Member, Council on Aging, Mary Jo Brady, Buckhannon,
Upshur County, for the term ending June 30, 2003.
33. For Member, Council on Aging, Earl F. Jarvis, Logan, Logan County, for the term ending June 30, 2003.
34. For Member, Board of Medicine, The Honorable Mary Pearl
Compton, Union, Monroe County, for the term ending September 30,
2007.
35. For Member, Board of Medicine, Orman Richard Bowyer,
Fairmont, Marion County, for the term ending September 30, 2007.
36. For Member, Housing Trust Fund Board of Directors, Sandra
J. Hamlin, Charleston, Kanawha County, for the term ending May 10,
2007.
37. For Member, Housing Trust Fund Board of Directors, Gail
Stilley, Chapmanville, Logan County, for the term ending May 10,
2003.
39. For Member, Contractor Licensing Board, Janet Whipkey,
Morgantown, Monongalia County, for the term ending June 30, 2006.
40. For Member, Board of Occupational Therapy, Paula Glavach
Sisler, Morgantown, Monongalia County, for the term ending December
31, 2005.
41. For Member, Board of Occupational Therapy, Martin
Douglas, Poca, Putnam County, for the term ending December 31,
2005.
42. For Member, Real Estate Commission, John Reed, Hurricane,
Putnam County, for the term ending June 30, 2007.
43. For Member, Archives and History Commission, Betty
Nutting, Wheeling, Ohio County, for the term ending June 30, 2004.
And,
A letter from the President of the Senate and the Speaker of the House of Delegates, dated June 4, 2003, requesting confirmation
by the Senate of the nomination mentioned therein. The following
name is submitted:
1. For Judge, Court of Claims, Benjamin Hayes Webb II,
Fairmont, Marion County, for the term ending June 30, 2009.
And reports the same back with the recommendation that the
Senate do advise and consent to all of the nominations listed
above.
Respectfully submitted,
Shirley Love,
Chair.
__________
On motion of Senator Chafin, the Senate 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, and a legislative nomination submitted by
the President of the Senate and the Speaker of the House of
Delegates, as required by Chapter 14, Article 2, Section 4 of the
Code of West Virginia, the special order thereon was called by the
President.
Thereupon, Senator Tomblin (Mr. President) laid before the
Senate the following executive message and letter from the
President of the Senate and the Speaker of the House of Delegates:
Senate Executive Message No. 2, dated June 11, 2003 (shown in
the Senate Journal of June 30, 2003, pages 48 through 52, inclusive);
And,
A letter from the President of the Senate and the Speaker of
the House of Delegates, dated June 4, 2003 (shown in the Senate
Journal of June 10, 2003, page seven).
Senator Love 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 and that the legislative
nomination of Benjamin Hays Webb II, as Judge, Court of Claims, be
confirmed.
Senator Smith moved that Senator Love's motion be amended to
provide that the nomination of The Honorable Mary Pearl Compton to
the Board of Medicine (being nomination number 34 in Executive
Message No. 2) be considered separately.
The question being on the adoption of Senator Smith's
aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator Smith
demanded a division of the vote.
A standing vote being taken, there were sixteen "yeas" and
fifteen "nays".
Whereupon, the President declared Senator Smith's aforestated
motion had prevailed.
The question being on the adoption of Senator Love's motion,
as amended,
The roll was then taken; and
On this question, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Facemyer and Unger--2.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared Senator Love's
motion, as amended, had prevailed.
Senator Love then moved that the Senate advise and consent to
the nomination of The Honorable Mary Pearl Compton to the Board of
Medicine (being nomination number 34 in Executive Message No. 2).
The roll was then taken; and
On this question, the yeas were: Bowman, Caldwell, Chafin,
Edgell, Fanning, Hunter, Jenkins, McCabe, Oliverio, Plymale, Rowe,
Snyder, White and Tomblin (Mr. President)--14.
The nays were: Bailey, Boley, Deem, Dempsey, Guills,
Harrison, Helmick, Kessler, Love, McKenzie, Minard, Minear,
Prezioso, Ross, Sharpe, Smith, Sprouse and Weeks--18.
Absent: Facemyer and Unger--2.
So, a majority of all the members elected to the Senate not
having voted in the affirmative, the President declared Senator
Love's motion had not prevailed and the nomination of The Honorable
Mary Pearl Compton to the Board of Medicine had not been confirmed.
__________
Consideration of executive and legislative nominations having been concluded,
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the sixth order of business, which agenda
includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Senate Bill No. 2013, Relating to workers' compensation
generally.
Passed by the Senate on yesterday, Monday, June 30, 2003,
The bill still being in the possession of the Senate,
On motion of Senator McCabe, the Senate reconsidered the vote
as to the effective date and passage of the bill.
The vote thereon having been reconsidered,
[Clerk's Note: The message from The Clerk of the House of
Delegates reported on yesterday, Monday, June 30, 2003, (shown in
the Senate Journal of that day, pages 60 and 61) was incomplete in
that the House of Delegates amended title was not included in the
communication.]
The Clerk then reported the following House of Delegates
amendment to the title of the bill:
On pages one through three, by striking out the title and
inserting in lieu thereof a new title, to read as follows:
Eng. Senate Bill No. 2013--A Bill to repeal sections one, two,
three, four, five, six and seven, article three, chapter twenty-
one-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal section five-b, article two, chapter twenty-three of said code; to repeal section seven, article
four-a of said chapter; to amend and reenact section thirty-three-
d, article three, chapter five-a of said code; to amend and reenact
sections four and five, article three, chapter five-b of said code;
to amend and reenact section one, article two, chapter five-f of
said code; to amend and reenact section seven, article twelve,
chapter eleven of said code; to amend and reenact section four,
article one-a, chapter twelve of said code; to amend and reenact
section six, article six of said chapter; to amend and reenact
section ten, article two, chapter fifteen of said code; to amend
and reenact section fifteen, article one, chapter sixteen of said
code; to amend and reenact section three, article twenty-nine-d of
said chapter; to amend and reenact section three, article thirty-
six of said chapter; to amend and reenact section twenty-six,
article nine-a, chapter eighteen of said code; to amend and reenact
section twelve-a, article ten-a of said chapter; to amend and
reenact section two, article ten-k of said chapter; to amend and
reenact section three, article three-a, chapter twenty-one of said
code; to amend and reenact section four, article one, chapter
twenty-one-a of said code; to amend and reenact sections six, six-c
and thirteen, article two of said chapter; to amend and reenact
section eleven, article ten of said chapter; to amend and reenact
section eight, article three, chapter twenty-two of said code; to
amend and reenact sections one, two, three, four, five, six, seven,
eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,
seventeen and eighteen, article one, chapter twenty-three of said code; to further amend said article by adding thereto eight new
sections, designated sections one-a, one-b, one-c, one-d, one-e,
one-f, four-a and nineteen; to amend and reenact sections one, one-
c, one-d, two, three, four, five, five-a, five-c, five-d, six,
nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and
seventeen, article two of said chapter; to amend and reenact
section one, article two-a of said chapter; to amend and reenact
sections one, two and three, article two-b of said chapter; to
amend and reenact sections one, one-a, two, three and five, article
three of said chapter; to further amend said article by adding
thereto a new section, designated section six; to amend and reenact
sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-
b, three-c, four, five, six, six-a, six-b, six-d, seven, seven-a,
seven-b, eight, eight-a, eight-b, eight-c, nine, nine-b, ten,
eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen,
sixteen-a, seventeen, eighteen, twenty, twenty-two, twenty-three,
twenty-four and twenty-five, article four of said chapter; to
further amend said article by adding thereto a new section,
designated section one-g; to amend and reenact sections one, three,
five, six and eight, article four-a of said chapter; to amend and
reenact sections two, five, six and seven, article four-b of said
chapter; to further amend said article by adding thereto a new
section, designated section eight-b; to amend and reenact sections
two, three, four and five, article four-c of said chapter; to amend
and reenact sections one, two, three, four, five, six, seven,
eight, nine, ten, eleven, twelve, fifteen, seventeen and eighteen, article five of said chapter; to amend and reenact section two,
article eight, chapter twenty-six of said code; to amend and
reenact sections one hundred twenty-five and one hundred thirty-
one, article eighteen, chapter forty-eight of said code; and to
amend and reenact sections twenty-four-e, twenty-four-f and twenty-
four-g, article three, chapter sixty-one of said code, all relating
to workers' compensation generally; repealing provisions relating
to the compensation programs performance council; repealing
provisions relating to default settlement; repealing provisions
relating to employees and payment of salaries from the disabled
workmen's relief fund; removing workers' compensation from the
bureau of employment programs; directing certain reports to be
filed quarterly; providing legislative findings; creating workers'
compensation commission as an independent agency assuming all
duties of division; creating the workers' compensation board of
managers; establishing composition of board; establishing
qualifications for membership; establishing appointment procedures
for members; providing for compensation and travel expenses;
setting forth the powers and duties of board; establishing
position, powers and duties of executive director; establishing
qualifications; establishing procedure for removal; providing
violator system to prohibit certain persons from obtaining state
licenses, certificates and permits in certain circumstances;
providing for payment withholding and interception of moneys of
certain employers; providing penalties for failure to withhold or
intercept payments; authorizing interagency agreements for the bureau of employment programs and workers' compensation commission;
providing for the adoption of workers' compensation rules by
commission; transferring assets and contracts; establishing fraud
and abuse investigation and prosecution unit; providing powers and
duties of unit; providing for legislative oversight of commission;
providing for salaries and expenses of commission; requiring bond
and insurance for the executive director and associate director;
authorizing the executive director to hire an associate director
and other employees; providing for associate director to assume
authority in absence of executive director; authorizing certain
commission employees to administer oaths; providing for issuance
and enforcement of agency subpoenas; providing additional civil
remedies for violations of law; allowing certain elected local
officials not to participate in workers' compensation; providing
that limited liability companies may elect to not provide workers'
compensation coverage to certain members; clarifying that
extraction of natural resources is provision of services; requiring
promulgation of rule to prevent contractors from avoiding liability
for workers' compensation premiums; creating ongoing duty to
provide information to commission; authorizing rate reductions for
safety and loss prevention and drug-free workplace initiatives;
requiring rates, surcharges and assessments to be financially sound
and sufficient to meet needs of the funds; establishing rate caps;
authorizing the commission to require employers to pay premium
taxes more often than quarterly; extending time for commission to
collect from defaulting or delinquent employers; establishing statute of limitations; allowing specified groups of employers to
self-insure their obligations to the commission; requiring self-
insured employers to administer claims; requiring self-insured
employers to comply with the law and commission rules; establishing
components of self-insured premium tax; requiring employers that
self-insure second injury benefits to continue to be responsible
for the claims; providing that self-insured employers who fail to
make benefit payments are in default in certain circumstances;
authorizing the commission to determine self-insured rates;
authorizing self-insured employers to obtain third-party insurance
for catastrophic claims and requiring copy of policy; prohibiting
self-insured employers from contracting with third-party
administrators who have not been approved by the commission;
allowing for subrogation of medical benefits and authorizing
reasonable attorney fees and reasonable portion of costs;
eliminating second injury awards and the second injury reserve fund
for certain claims; providing for management of the deficit;
authorizing emergency fiscal measures; reporting requirements of
self-insurers; requiring commission to adopt standards for
evaluation of whole-body impairment with regard to certain
occupational diseases; providing an expedited appeal to the office
of judges where self-insured denies compensability; requiring
assessment of claimant's return-to-work potential; providing
assistance in return-to-work efforts; authorizing repayment of
overpayments from future benefits and providing for liability of
attorney for certain fees and expenses; prohibiting a claimant from receiving certain workers' compensation benefits and private
benefits in certain circumstances; requiring award of permanent
partial disability benefits be made as expeditiously as possible;
requiring medical providers to submit timely requests for payment;
authorizing certain employers with managed health care plans to
require employees to use the plan for treatment of compensable
injuries; exceptions; authorizing the commission to establish
managed health care plans; providing for weighing of evidence;
providing for suspension or termination of health care providers;
requiring commission to set standards for medical management of
claims; providing benefits for cemetery expenses; eliminating
annual increases in benefits; reducing certain benefit rates;
establishing new criteria for eligibility for benefits for certain
injuries and diseases; increasing to fifty percent the percentage
of whole body impairment for eligibility for consideration for a
permanent total disability award; establishing internal operative
dates; requiring the executive director to promulgate a rule to
establish requirements for an application for permanent total
disability benefits; specifying application required for claim for
permanent total disability benefits; providing for the
establishment of an onset date for permanent total disability
benefits; providing for increase of minimum aggregation of
percentages of permanent disability or medical impairment prior to
applying for permanent total disability award; providing for prior
disability awards excluded from calculation; providing that ability
to acquire skills may be considered in permanent total disability determination; providing that neither certain proximity of
employment nor comparison of wages may be considered when
determining permanent total disability; terminating permanent total
disability benefits at age seventy in certain circumstances;
eliminating the five-percent presumptive award of occupational
pneumoconiosis; authorizing application for occupational
pneumoconiosis benefits within three years of determination of
impairment; providing that the commission may suspend benefits to
a claimant for refusing, without good cause, treatment or
examination by a physician; providing for a trial work period;
modifying provisions for vocational rehabilitation services;
authorizing reopening and review of claims; establishing duty to
provide information to commission; expanding monitoring in injury
claims; authorizing suspension or termination of benefits in
certain circumstances; removing certain offset provisions;
providing certain incentives for premium discounts; providing that
certain portion of rate increase not be subject to collection;
expanding sources from which overpayment of benefits and awards may
be collected; providing for further examinations of certain
disability benefit recipients; providing for transfer of certain
funds from and to coal-workers' pneumoconiosis fund; permitting
certain employers to self-insure certain obligations; providing for
the settlement of claims; providing a statute of limitations on
employer liability in certain circumstances; requiring certain
security or bond from employers; administration of claims by self-
insured employers; requiring certain additional amounts to be paid to the commission by employers; providing circumstances in which
employers are in default in obligations to the commission;
requiring commission approval of employer use of third-party
administrator; requiring electronic transfer of funds; providing
time limitation for certain payments; authorizing rule to permit
employers to contract with certain providers of services in certain
circumstances; providing for payments of certain benefits during
participation in certain rehabilitation plans; providing for the
termination of or limitation on certain benefits in certain
circumstances; requiring rules for certain administrative
functions; requiring expedited hearings in certain circumstances;
providing for finality of certain administrator decisions;
providing standards of review; providing for mediation; providing
for removal of chief administrative law judge; providing for
appeals; establishing time frames for appeals; establishing
standards for appeal; creating the workers' compensation board of
review; authorizing salary for members; providing for appointment
of members of board; establishing qualifications of members of the
board; establishing position of chairman; authorizing rules of
procedure; authorizing clerk and other employees; providing for
remand of cases; providing for standards for appeals to the West
Virginia supreme court of appeals; providing civil and criminal
penalties and judgments for restitution; making technical
corrections and removing archaic language throughout; and providing
conforming amendments.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 2013, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Deem, Edgell, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Weeks and
Tomblin (Mr. President)--26.
The nays were: Bailey, Chafin, Dempsey, Fanning, Love and
White--6.
Absent: Facemyer and Unger--2.
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. 2013) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Deem, Edgell, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Weeks and Tomblin (Mr.
President)--26.
The nays were: Bailey, Chafin, Dempsey, Fanning, Love and
White--6.
Absent: Facemyer and Unger--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 2013) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator Chafin, the Senate recessed until 12:45
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 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. 2007, Amending state excess lottery
revenue fund.
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 page seven, section eighteen-a, line four, by striking out
"(e)" and inserting in lieu thereof "(d)";
On pages seven and eight, section eighteen-a, by striking out
the following: No portion of the distributions made as provided in
subsection subsections (b) and (c) of this section, except
distributions made in connection with bonds issued under subsection
(d) of this section, may be used to pay debt service on bonded
indebtedness until after the Legislature expressly authorizes
issuance of the bonds and payment of debt service on the bonds through statutory enactment or the passage of a concurrent
resolution by both houses of the Legislature. Until subsequent
legislative enactment or adoption of a resolution that expressly
authorizes issuance of the bonds and payment of debt service on the
bonds with funds distributed under subsection subsections (b) and
(c) of this section, except distributions made in connection with
bonds issued under subsection (d) of this section, the
distributions may be used only to fund capital improvements that
are not financed by bonds and only pursuant to appropriation of the
Legislature.;
On page twelve, section eighteen-a, line eleven, by striking
out the words "and no new applications may be submitted";
On page fifteen, section eighteen-a, after line five, by
inserting a new paragraph, designated paragraph (J), to read as
follows:
"(J) State-owned buildings that are registered on the national
register of historic places;";
And relettering the remaining paragraphs;
On page fifteen, section eighteen-a, lines sixteen and
seventeen, by striking out the following: Once certified, the list
may not thereafter be altered or amended other than by legislative
enactment.;
On page fifteen, section eighteen-a, line twenty-four, after
the word "code." by inserting the following: Expenditures from the
fund are not authorized from collections but are to be made only in
accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code
and upon fulfillment of the provisions of article two, chapter
five-a of this code.;
On page sixteen, section eighteen-a, after line two, by
inserting a new subsection, designated subsection (e), to read as
follows:
(e) Notwithstanding any provision of this code to the
contrary, no portion of the distributions made as provided in
subsections (b), (c) and (d) of this section may be used to pay
debt service on bonded indebtedness until after the Legislature
expressly authorizes issuance of the bonds and payment of debt
service on the bonds, and in the event the bonds are issued in
separate series, until after the Legislature expressly authorizes
issuance of each series, through statutory enactment or the
adoption of a concurrent resolution by both houses of the
Legislature. Until subsequent legislative enactment or adoption of
a resolution that expressly authorizes issuance of the bonds,
including any separate series, and payment of debt service on the
bonds with funds distributed under subsections (b), (c) and (d) of
this section, the distributions may be used only to fund capital
improvements that are not financed by bonds and only pursuant to
appropriation of the Legislature.;
And relettering the remaining subsections;
On page sixteen, section eighteen-a, line twenty-two, by
striking out the words "of this section" and inserting in lieu
thereof a comma and the words "section eighteen of this article";
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 2007--A Bill to amend and reenact section
eighteen-a, article twenty-two, chapter twenty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
relating generally to state excess lottery fund; deleting obsolete
language; providing that certain bonds issued state on their face
that they do not constitute a debt of the state; providing that the
governor appoint six persons to the committee certifying projects
to receive funds from bond proceeds; designating prior applications
as refiled; requiring a certain applicant to file additional
information with the committee; providing criteria to be used by
the committee in certifying projects; prohibiting grants to
individuals or private entities, but allowing low-interest loans to
such persons; giving examples of the types of projects considered
to be in the public interest; requiring Legislative authorization
of issuance of certain bonds, series of bonds and payment of debt
service on bonds through statutory enactment or concurrent
resolution; and providing that any excess funds be placed in the
economic development project bridge loan fund.
On motion of Senator Kessler, the Senate concurred in the
House of Delegates amendments to the bill excepting pages seven and
eight, section eighteen-a, by striking out; page twelve, section
eighteen-a, line eleven; page fifteen, section eighteen-a, lines
sixteen and seventeen; and page sixteen, section eighteen-a, after line two.
On motion of Senator Helmick, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 2007--A Bill to amend and reenact section
eighteen-a, article twenty-two, chapter twenty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
relating generally to state excess lottery fund; deleting obsolete
language; providing that certain bonds issued state on their face
that they do not constitute a debt of the state; providing that the
governor appoint six persons to the committee certifying projects
to receive funds from bond proceeds; designating prior applications
as refiled and barring submission of new applications; requiring a
certain applicant to file additional information with the
committee; providing criteria to be used by the committee in
certifying projects; prohibiting grants to individuals or private
entities, but allowing low-interest loans to such persons; giving
examples of the types of projects considered to be in the public
interest; and providing that any excess funds be placed in the
economic development project bridge loan fund.
Engrossed Senate Bill No. 2007, as amended, was then put upon
its passage.
Pending discussion,
On motion of Senator Kessler, the Senate reconsidered the vote
by which immediately hereinbefore it adopted Senator Helmick's amendment to the title of the bill.
The vote thereon having been reconsidered,
At the request of Senator Helmick, and by unanimous consent,
Senator Helmick's amendment to the title of the bill was withdrawn.
On motion of Senator Kessler, the Senate reconsidered its
action by which it adopted Senator Kessler's motion that the Senate
concur in the House of Delegates amendments to the bill excepting
pages seven and eight, section eighteen-a, by striking out; page
twelve, section eighteen-a, line eleven; page fifteen, section
eighteen-a, lines sixteen and seventeen; and page sixteen, section
eighteen-a, after line two.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Kessler's
motion that the Senate concur in the House of Delegates amendments
to the bill excepting pages seven and eight, section eighteen-a, by
striking out; page twelve, section eighteen-a, line eleven; page
fifteen, section eighteen-a, lines sixteen and seventeen; and page
sixteen, section eighteen-a, after line two.
At the request of Senator Kessler, and by unanimous consent,
his foregoing motion was withdrawn.
Thereafter, on motion of Senator Kessler, the Senate concurred
in the House of Delegates amendments to the bill excepting pages
seven and eight, section eighteen-a, by striking out; page fifteen,
section eighteen-a, lines sixteen and seventeen; and page sixteen,
section eighteen-a, after line two.
On motion of Senator Helmick, the following amendment to the title of the bill was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 2007--A Bill to amend and reenact section
eighteen-a, article twenty-two, chapter twenty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
relating generally to state excess lottery fund; deleting obsolete
language; providing that certain bonds issued state on their face
that they do not constitute a debt of the state; providing that the
governor appoint six persons to the committee certifying projects
to receive funds from bond proceeds; designating prior applications
as refiled; requiring a certain applicant to file additional
information with the committee; providing criteria to be used by
the committee in certifying projects; prohibiting grants to
individuals or private entities, but allowing low-interest loans to
such persons; giving examples of the types of projects considered
to be in the public interest; and providing that any excess funds
be placed in the economic development project bridge loan fund.
Engrossed Senate Bill No. 2007, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder,
Sprouse, White and Tomblin (Mr. President)--29.
The nays were: Guills, Harrison, Smith and Weeks--4.
Absent: Unger--1.
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. 2007) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder,
Sprouse, White and Tomblin (Mr. President)--29.
The nays were: Guills, Harrison, Smith and Weeks--4.
Absent: Unger--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 2007) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Chafin offered the following pre-adjournment
resolution:
Senate Resolution No. 203--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 Chafin, 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 Jenkins, Minard and Smith.
Subsequently, Senator Jenkins reported that the duties
assigned by Senate Resolution No. 203 had been performed.
Thereafter, a three-member delegation from the House of
Delegates, namely
Delegates Craig, Doyle and Susman, announced that that body
also had completed its labors and was ready to adjourn sine die.
Senator Chafin then offered the following resolution:
Senate Resolution No. 204--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 Chafin, 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 Sharpe, Love and Boley.
The President next acknowledged another delegation from the
House of Delegates, consisting of
Delegates Boggs, Brown and Smirl, who announced that they had
been appointed by that body to join with the similar committee
named by the Senate to wait upon His Excellency and were ready to
proceed with this assignment.
Senators Sharpe, Love and Boley, comprising the Senate
committee, then joined the House committee and proceeded to the
executive offices to notify His Excellency, the Governor, of
imminent adjournment of this extraordinary session of the
Legislature.
Subsequently, Senator Sharpe, from the joint select committee
to notify His Excellency, the Governor, that the Legislature had
completed the business of this extraordinary session and was ready
to adjourn sine die, returned to the chamber and was recognized by
the President. Senator Sharpe then reported this mission
accomplished.
On motion of Senator Chafin, the Senate recessed for five
minutes.
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
that that body had receded from its amendments on pages seven and
eight, section eighteen-a, by striking out; page fifteen, section eighteen-a, lines sixteen and seventeen; and page sixteen, section
eighteen-a, after line two, and the concurrence by that body in the
Senate amended title to, and the passage as amended by deletion, to
take effect from passage, of
Eng. Senate Bill No. 2007, Amending state excess lottery
revenue fund.
At the request of Senator Snyder, and by unanimous consent,
Senator Snyder addressed the Senate regarding nomination number 34
contained in Executive Message No. 2.
At the request of Senator Smith, unanimous consent being
granted, Senator Smith addressed the Senate regarding nomination
number 34 contained in Executive Message No. 2.
At the request of Senator Sprouse, and by unanimous consent,
Senator Sprouse addressed the Senate regarding the role of the
Senate in confirming nominations submitted by the Governor.
At the request of Senator Love, unanimous consent being
granted, Senator Love addressed the Senate regarding the process
utilized by the Committee on Confirmations to notify Senate members
of nominations submitted by the Governor.
At the request of Senator Rowe, and by unanimous consent,
Senator Rowe addressed the Senate regarding nomination number 34
contained in Executive Message No. 2.
Thereafter, at the request of Senator Snyder, and by unanimous
consent, the remarks by Senator Rowe were ordered printed in the
Appendix to the Journal.
At the request of Senator Rowe, 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 second
extraordinary session of the seventy-sixth Legislature in the year
two thousand three, 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 reports of the Joint Committee on Enrolled Bills were
filed as follows:
Senator Rowe, 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 3rd day of July, 2003, 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. 2007), Amending state excess lottery revenue fund.
(Com. Sub. for S. B. No. 2012), Allowing agencies, counties
and their instrumentalities to enter into energy saving contracts;
leaseback.
(S. B. No. 2016), Making appropriation out of public moneys to
chapter twenty, acts of the Legislature.
(H. B. No. 213), Supplementary appropriation of public moneys
out of moneys remaining as an unappropriated balance in the state
fund, general revenue, to the department of education.
And,
(H. B. No. 219), Supplementary appropriation to a new item of
appropriation designated to the governor's office - jobs and growth
tax relief reconciliation act of 2003.
Respectfully submitted,
Larry L. Rowe,
Chair, Senate Committee.
Sharon Spencer,
Chair, House Committee.
Senator Rowe, 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 July, 2003, presented to His
Excellency, the Governor, for his action, the following bill,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(S. B. No. 2013), Relating to workers' compensation generally.
Respectfully submitted,
Larry L. Rowe,
Chair, Senate Committee.
Sharon Spencer,
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 communications from His Excellency,
the Governor, advising that on July 7, 2003, he had approved Enr.
Senate Bill No. 2016, Enr. House Bill No. 213 and Enr. House Bill
No. 219; on July 14, 2003, he had approved Enr. Senate Bill No.
2007; and on July 17, 2003, he had approved Enr. Committee
Substitute for Senate Bill No. 2012 and Enr. Senate Bill No. 2013.
On motion of Senator Bailey, the second extraordinary session
of the Senate in the year two thousand three adjourned sine die.
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