__________*__________

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H. B. 4286, Repealing the section of the code relating to coverage for alcoholic treatment because it is superseded by another part of the code,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.