__________*__________
Tuesday, February 10, 2004
The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Monday, February 9, 2004, being the first order
of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 4160, Investigating and interviewing alleged adult victims of abuse or neglect,
And,
H. B. 4286, Repealing the section of the code relating to coverage for alcoholic treatment
because it is superseded by another part of the code,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that they each do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bills (H. B. 4160 and H. B. 4286) will be placed on the
Consent Calendar.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented the annual report of the Legislative Oversight Committee
on the Regional Jail and Correctional Facility Authority, in accordance with section twenty-six,
article twenty, chapter thirty-one of the code; which was filed in the Clerk's Office.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment
and requested the House of Delegates to agree to the appointment of a Committee of Conference of
five from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 4022, Creating "The All-Terrain Vehicle Safety Regulation Act".
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Kessler, Ross, Oliverio, White and Deem.
On motion of Delegate Staton, the House of Delegates agreed to the appointment of a
Committee of Conference of five from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Beane, Talbott, Ennis, Manuel and Caruth.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage of
S. B. 318 - "A Bill to amend and reenact §28-5-27 of the code of West Virginia, 1931, as
amended, relating to good time for inmates of correctional institutions; providing that good time may
be credited presumptively at the beginning of an inmate?s sentence and that all of an inmate?s good
time is subject to forfeiture and revocation for violation of disciplinary rules; and providing credit
of good time for certain youthful offenders"; which was referred to the Committee on the Judiciary
then Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage of
S. B. 319 - "A Bill to amend and reenact §25-4-6 of the code of West Virginia, 1931, as
amended, relating to young adult offenders found unfit to remain at a center for young adult
offenders; specifying entitlement to a hearing before the committing court; providing standard of
review; and allowing reliance on record established at the center under specified circumstances";
which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage of
S. B. 406 - "A Bill to amend and reenact §61-11A-8 of the code of West Virginia, 1931, as
amended, relating to allowing victims of crime to be notified by telephone when a specified defendant is released from custody"; which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage of
S. B. 449 - "A Bill to amend and reenact §3-2-10 of the code of West Virginia, 1931, as
amended; to amend and reenact §3-4-3 of said code; to amend and reenact §3-4A-3 of said code; to
amend and reenact §3-5-8, §3-5-13 and §3-5-13a of said code; and to amend and reenact §3-8-7 of
said code, all relating to elections generally; correcting United States code reference; authorizing
county commissions to discontinue use of voting machines and replace them with other systems
meeting certain federal requirements under certain circumstances; reducing the filing fee for
presidential and vice presidential candidates; clarifying that the filing fee for certain county offices
is based only on the annual salary of the position; adding family court judge to list of offices on
county ballot; and removing the requirement that ballots be printed with space for ballot
commissioners' signatures"; which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 32 - "Requesting West Virginia's congressional delegation support certain
amendments to and funding for the No Child Left Behind Act (NCLB) and the Individuals with
Disabilities Education Act (IDEA)."
Whereas, IDEA is a federal law that was first enacted in 1975 and NCLB is federal legislation signed into law on January 8, 2002; and
Whereas, Neither federal act has been funded by the federal government; and
Whereas, Under IDEA, goals and objectives for IDEA-eligible students with disabilities are
set in their individualized education plan (IEP); and
Whereas, Under NCLB, IDEA-eligible students with disabilities are tested against the same
academic standards as other students. If any subgroup of students in a school does not meet adequate
yearly progress (AYP) for two consecutive years, the school must offer school choice to all students
at the school. Sanctions would apply to a school that has any subgroup fail to meet AYP in any
indicator in year one and has any subgroup fail to meet AYP in any indicator in year two. This
means that the failure to meet AYP in consecutive years does not have to be by the same subgroup
in a school or in the same indicator in order for the sanction to apply. A school can fail to make
adequate yearly progress solely because a subgroup does not meet the 95 percent test participation
requirement; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests West Virginia's congressional delegation support certain
amendments to and funding for the No Child Left Behind Act (NCLB) and the Individuals with
Disabilities Education Act (IDEA); and, be it
Further Resolved, That the Legislature also requests that West Virginia's congressional
delegation support:
(1) Full federal funding for both NCLB and IDEA;
(2) A grade-level equivalent form of assessment for IDEA-eligible students with disabilities
in order to resolve the inconsistency between the two acts;
(3) Limiting school choice to the subgroup or subgroups that do not meet adequate yearly
progress;
(4) Requiring sanctions to apply to schools, or to subgroups within schools, only when the
same subgroup fails to meet AYP in the same indicator in consecutive years; and
(5) Elimination of the penalties on schools who have not met AYP solely because a subgroup
does not meet the 95 percent test participation requirement; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to West Virginia's congressional delegation.
Resolutions Introduced
Mr. Speaker, Mr. Kiss, and Delegates Stalnaker, Amores, Anderson, Armstead, Ashley,
Azinger, Beach, Beane, Blair, Boggs, Border, Brown, Browning, Butcher, Calvert, Campbell, Cann,
Canterbury, Caputo, Carmichael, Caruth, Craig, Crosier, DeLong, Doyle, Duke, Ellem, Ennis, Evans,
Faircloth, Ferrell, Fleischauer, Foster, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield,
Houston, Howard, Hrutkay, Iaquinta, Kominar, Kuhn, Leach, Leggett, Long, Louisos, Mahan,
Manchin, Manuel, Martin, Mezzatesta, Michael, Morgan, Palumbo, Paxton, Perdue, Perry, Pethtel,
Pino, Poling, Proudfoot, Renner, Romine, Schadler, Schoen, Shaver, Smirl, Sobonya, Spencer,
Staton, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, R. Thompson, R. M. Thompson,
Trump, Tucker, Varner, Wakim, Walters, Warner, Webb, Webster, G. White, H. White, Williams,
Wright, Yeager and Yost offered the following resolution, which was read by its title and referred
to the Committee on Rules:
H. R. 7 - "Designating Thursday, February 27, 2004, as West Virginia History Day at the
House of Delegates and recognizing the work of all those history heroes and the many willing workers in hundreds of organizations throughout the State who volunteer hundreds of thousands of
hours to help educate the public about the Mountain State's unique heritage and who help to preserve
the past for future generations."
Whereas, The efforts of the West Virginia Archives and History Commission, the Friends
of the West Virginia Culture and History, the Preservation Alliance of West Virginia, the West
Virginia Historical Society, the West Virginia Historical Association, the West Virginia Association
of Museums, the West Virginia Humanities Council and the West Virginia Mining Your History
Foundation benefit from the unselfish efforts of the many volunteers and unselfish people who
support the effort to preserve the State's history; and
Whereas, The State of West Virginia has a rich and varied history providing a wellspring
of pride in the accomplishments of its people and a springboard for future generations of
mountaineers; and
Whereas, All West Virginians are deeply indebted to those selfless individuals who support
West Virginia's rich and varied State and local history with their research, interpretations,
publications or preservation efforts; therefore, be it
Resolved by the House of Delegates:
That Thursday, February 27, 2004, is hereby declared as West Virginia History Day at the
House of Delegates; and, be it
Further Resolved, That the House of Delegates hereby recognizes all of the people and
organizations throughout the State who work to promote our culture, educate our children and
preserve the character of our past to the benefit of all West Virginians.
Delegates Armstead, Howard, Carmichael, Amores, Trump, Caruth and Kominar offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 8 - "Amending the rules of the House of Delegates, relating to requiring consideration
of fiscal impact of proposed crime legislation."
Resolved by the House of Delegates:
That the Standing Rules of the House of Delegates be amended by adding thereto a new rule
as follows:
Correctional System Fiscal Impact Note.
95b. Prior to consideration, by the House or by any committee thereof, of any bill which
proposes to create new criminal conduct punishable by incarceration, or either increases or decreases
any criminal penalty involving a term of incarceration, the department of corrections, in conjunction
with any applicable state agency, shall provide a correctional system fiscal impact note outlining the
projected fiscal impact on the state's correctional system of the legislative proposal. The note shall
include projected increases or decreases in persons incarcerated, the fiscal impact the proposal likely
will have on existing availability of correctional facilities and facility space; whether the proposal
will likely decrease or increase inmate populations and, in the case of increased inmate populations,
whether additional costs will necessarily be incurred for expanded and increased correctional or jail
facilities, equipment and personnel and, if so, the projected cost therefor.
Bills Introduced
On motions for leave, bills were introduced, read by their titles, and severally referred as
follows:
By Mr. Speaker, Mr. Kiss (By Request):
H. B. 4376 - "A Bill to amend and reenact §18A-3-2 of the code of West Virginia, 1931, as amended, relating to tuition reimbursement for teachers pursuing a masters degree"; to the
Committee on Education then Finance.
By Mr. Speaker, Mr. Kiss, and Delegates Staton, Varner, Mahan, Doyle, Browning and
Hrutkay:
H. B. 4377 - "A Bill to amend and reenact §33-20F-7 of the code of West Virginia, 1931,
as amended, relating to the assessment of a penalty on those physicians who fail to pay the special
assessment"; to the Committee on the Judiciary then Finance.
By Delegates Beane, Mezzatesta, Michael and Kominar:
H. B. 4378 - "A Bill to amend and reenact §16-4C-14 of the code of West Virginia, 1931,
as amended, relating to allowing emergency medical personnel the right to practice according to their
practice act in any setting"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Beane, Mezzatesta, Michael and Kominar:
H. B. 4379 - "A Bill to amend and reenact §30-7-3 of the code of West Virginia,1931, as
amended, relating to changing the representation of the board of registered professional nurses"; to
the Committee on Government Organization.
By Delegates Brown, Amores, Hrutkay, Doyle and Poling:
H. B. 4380 - "A Bill to amend and reenact §57-3-9 of the code of West Virginia, 1931, as
amended, relating to removing the privilege of confidentiality in communications to clergy when the
communications involve matters involving sexual abuse of a minor child"; to the Committee on the
Judiciary.
By Delegate Browning:
H. B. 4381 - "A Bill to amend and reenact §11-12-5 of the code of West Virginia, 1931, as amended; to amend and reenact section §11A-1-7 of said code; to amend and reenact §11A-2-11 of
said code; and to amend and reenact §11A-2-20 of said code, all relating to real and personal
property taxes; requiring payment of personal property taxes as a condition precedent to receiving
or maintaining a business registration certificate; allowing the tax commissioner to suspend a
business registration certificate for failure to pay delinquent personal property taxes; requiring
collection of delinquent personal property taxes prior to collection for current personal property
taxes; requiring the tax commissioner to suspend or refuse to issue a business registration certificate
upon notice from the sheriff that the registrant has not paid delinquent personal property taxes;
requiring the tax commissioner to propose legislative rules; requiring fees; establishing fund;
permitting abstract in lieu of certificate of attorney-at-law for refund; and requiring compliance to
enjoy benefits of purchase"; to the Committee on Industry and Labor, Economic Development and
Small Business then the Judiciary.
By Delegates Caputo, Mahan, Perdue, Fleischauer, Kuhn, Tucker and Butcher:
H. B. 4382 - "A Bill to amend and reenact §22B-4-1 of the code of West Virginia, 1931, as
amended, relating to authorizing the governor to appoint an additional member to the surface mine
board that represents the interests of labor"; to the Committee on Government Organization.
By Delegates Ellem, Howard, Border, Anderson, Beane, Caruth and Frederick:
H. B. 4383 - "A Bill to amend and reenact §29-22B-1902, of the code of West Virginia,
1931, as amended, relating to authorizing counties to, by ordinance, regulate the location of video
poker establishments"; to the Committee on the Judiciary then Finance.
By Delegates Frederick, Kuhn and Yeager:
H. B. 4384 - "A Bill to amend and reenact §22A-1-8, §22A-1-9, §22A-1-11, §22A-1-12 and §22A-1-13 of the code of West Virginia, 1931, as amended, all relating to mine inspectors; districts
and divisions; employment; tenure; oath; bond; mine safety instructors; qualifications; employment;
compensation; employment of electrical inspectors; qualifications; salary and expenses; eligibility
for appointment as mine inspector; qualifications; salary and expenses; removal; eligibility for
appointment as surface mine inspector; qualifications; salary and expenses; and removal"; to the
Committee on the Judiciary then Finance.
By Delegates Hamilton, Canterbury, Poling, Boggs, Crosier, Leggett and Smirl:
H. B. 4385 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §15-2-9, relating to authorizing the superintendent of the West
Virginia state police to operate a voluntary contribution fund for designated beneficiaries of deceased
officers; providing legislative findings and a statement of legislative intent; providing for voluntary
contributions to and payments from the fund; authorizing the creation and maintenance of a bank
account for the fund; and authorizing the superintendent to develop forms and internal procedures
for the operation of the voluntary contribution fund"; to the Committee on Finance.
By Delegate Louisos:
H. B. 4386 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §47-7-1, relating to providing vendors may apply a surcharge of up
to six percent of the amount of any retail sales transaction in which a credit card is used"; to the
Committee on Finance.
By Delegates Michael, Perdue, Leach, Foster, Long and Hall:
H. B. 4387 - "A Bill to amend and reenact §16-1-4 of the code of West Virginia, 1931, as
amended; and to amend and reenact §60A-9-4 and §60A-9-5 of said code, all relating to a proposal of rules by the secretary; requiring the promulgation of emergency rules for methadone treatment
facilities; and requiring methadone treatment facilities to participate in the controlled substance
monitoring program"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Morgan, Craig, Leach, Stemple, Varner, Kominar and Smirl:
H. B. 4388 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §61-3-56, relating to making certain uses of retail sales receipts
or universal product code labels unlawful; and penalties"; to the Committee on the Judiciary.
By Delegates Overington, Armstead, Trump, Frich, Duke, Blair and Ellem:
H. B. 4389 - "A Bill to amend and reenact §33-20F-7 of the code of West Virginia, 1931,
as amended, relating to exempting inactive physicians from insurance assessment"; to the Committee
on the Judiciary then Finance.
By Delegate Staton:
H. B. 4390 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §61-10-32, relating to making tongue splitting a crime unless
performed by a licensed physician; and providing for a penalty"; to the Committee on the Judiciary.
By Delegates Stemple, Perry, Blair and Renner:
H. B. 4391 - "A Bill to amend and reenact §17A-3-23 of the code of West Virginia, 1931,
as amended, relating to establishing a new license plate that designates city or municipality law-
enforcement departments"; to the Committee on Roads and Transportation then Finance.
By Delegates Susman, Hatfield, Houston, Webster, Leach, Yeager and Fleischauer:
H. B. 4392 - "A Bill to amend and reenact §18-5-22 of the code of West Virginia, 1931, as
amended, relating to requiring county boards of education to employ one school nurse for every one thousand pupils based upon net enrollment in all grades"; to the Committee on Education then
Finance.
By Delegate Walters:
H. B. 4393 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §11-13U-1, §11-13U-2, §11-13U-3, §11-13U-4 and §11-13U-5, all
relating to the 'Small Business Development Incentive Program for Internal Growth Act'; providing
a short title; declaring legislative findings; providing definitions of certain terms; providing
exemptions from certain business-related taxes required by the state; and requiring the commissioner
of the department of tax and revenue to propose legislative rules to implement the purposes and
provisions of the article"; to the Committee on Industry and Labor, Economic Development and
Small Business then Finance.
By Delegates Warner and Renner:
H. B. 4394 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §17C-5C-1, §17C-5C-2, §17C-5C-3, §17C-5C-4, §17C-5C-5,
§17C-5C-6, §17C-5C-7, §17C-5C-8, §17C-5C-9, §17C-5C-10 and §17C-5C-11, all relating to
conforming the motor vehicle law of this state to the requirements of section 1405(a) of the federal
Transportation Equity Act for the Twenty-first Century (23 U.S.C. 154), as amended, which requires
states to enact and enforce a law that prohibits the consumption of an alcoholic beverage or the
possession of an open alcoholic beverage container in the passenger area of a motor vehicle that is
located on a public highway or the right-of-way adjacent to a public highway"; to the Committee on
the Judiciary.
By Delegates Webster, Brown, Caputo, Paxton, DeLong, Martin and Fleischauer:
H. B. 4395 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §8-15B-1, §8-15B-2, §8-15B-3, §8-15B-4 and §8-15B-5, all relating
to meeting and conference rights for members of police or fire departments employed by political
subdivisions; providing for the right of these members to self-organization; allowing designation of
an exclusive representative agent; imposing a duty to meet and confer with employees; allowing
deduction of employee organization dues and assessments; providing for compulsory arbitration of
disputes; listing prohibited acts; allowing hearing before civil service commission; providing judicial
review; specifying powers and duties of the civil service commission; and allowing injunctive
relief"; to the Committee on the Judiciary.
By Mr. Speaker, Mr. Kiss, and Delegates Staton and Proudfoot:
H. B. 4396 - "A Bill to reform, alter and modify the county commission of Hampshire
County under the provisions of section 13, article IX of the constitution of West Virginia"; to the
Committee on Political Subdivision then the Judiciary.
Consent Calendar
Third Reading
Com. Sub. for H. B. 4096, Increasing the veterinary fee for each cat and dog vaccinated for
rabies; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 95), and there were--yeas
96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Susman.
Absent And Not Voting: Coleman, Hatfield and Mezzatesta.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4096) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates on the Consent Calendar bill and request concurrence therein.
Second Reading
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to engrossment and third reading:
H. B. 3150, Barring state officers, agencies or entities from requiring that surety, payment,
performance or bid bonds be obtained from any particular company,
H. B. 4011, Bringing the West Virginia personal income tax act into conformity with the
federal income tax,
H. B. 4012, Bringing the West Virginia corporation net income tax act into conformity with
federal income tax,
Com. Sub. for H. B. 4086, Including Gulf War and Afghanistan conflict veterans on the
veterans' council,
H. B. 4348, Expiring funds to the treasurer's office banking services from the treasurer's
office - unclaimed property trust fund,
H. B. 4349, Relating generally to consumers sales and service tax,
H. B. 4350, Continuing the West Virginia state police,
And,
H. B. 4351, Continuing the waste tire remediation program.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Com. Sub. for H. B. 2200, Creating the felony offense of destruction of property,
And,
Com. Sub. for H. B. 4143, Creating a West Virginia center for nursing to establish a
statewide strategic plan to address the nursing shortage in the state and to facilitate recruitment and
retention of nurses.
House Calendar
Second Reading
H. B. 4134, Substituting the governor's chief technology officer as a member of the
employee suggestion award program; on second reading, coming up in regular order, was, on motion
of Delegate Staton, laid over one day.
Com. Sub. for H. B. 4269, Establishing the offense of setting fires in a public right of way
as arson in the fifth degree; on second reading, coming up in regular order, was read a second time.
Delegates Overington, Blair, Calvert, Frich, Howard, Sobonya, Sumner, Webb, Armstead
and Walters moved to amend the bill on page two, section six-a, line three, following the word
"property", by inserting a comma and the words "including the flag of the United States of America"
followed by a comma.
On motion of Delegate Staton, the bill was then laid over one day with the amendment
pending.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage of
S. B. 448 - "A Bill to repeal §18B-6-1a of the code of West Virginia, 1931, as amended; to
amend and reenact §18B-2B-8 of said code; to amend and reenact §18B-6-1, §18B-6-2a, §18B-6-3a,
§18B-6-4a and §18B-6-4b of said code; and to amend said code by adding thereto two new sections,
designated §18B-6-2 and §18B-6-2b, all relating to higher education advisory boards generally;
repealing obsolete language; conforming structure of state advisory groups of faculty, classified
employees and students; authorizing advisory groups to meet at call of chairperson or majority of
members; authorizing advisory groups to communicate directly with the commission and council;
requiring council to develop search and screening guidelines; adding definitions; directing
administratively linked community and technical colleges to establish campus advisory groups;
adding representatives from campus advisory groups to state advisory groups; clarifying that
members of state advisory councils are entitled to reimbursement for travel expenses; creating
faculty senates at state institutions of higher education; changing date term begins for student
representatives to the state advisory council of students; deleting obsolete language regarding
selection of students to serve on institutional governing and advisory boards; and providing
exception for classified employees and faculty who represent administratively linked community and
technical colleges to serve one-year term on state advisory boards until next regularly scheduled
election"; which was referred to the Committee on Education.
Leaves of Absence
At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day
were granted Delegates Coleman and Hatfield.
Miscellaneous Business
Delegate Ferrell announced that he was absent on February 6 and February 9, 2004, when
the votes were taken on Roll Nos. 84 through 94, and that had he been present, he would have voted
"Yea" thereon.
At 12:23 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00
a.m., Wednesday, February 11, 2004.