Conference Committee Report Availability


At 6:47 p.m., the Clerk announced the availability in his office of the reports of the Committee of Conference on S. B. 448 and H. B. 4107.
At 6:47 p.m., on motion of Delegate Staton, the House of Delegates recessed until 7:30 p.m., and reconvened at that time.
Special Calendar

Second Reading


Com. Sub. for S. B. 513, Relating to jobs investment trust board; on second reading, coming up in regular order, was reported by the Clerk.

Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 593), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:

Absent And Not Voting: Beach, Caputo, Coleman, Ferrell, Leggett, Schadler and Shelton.

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The bill was then read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, after the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 7. JOBS INVESTMENT TRUST FUND.
§12-7-4. Jobs investment trust board; composition; appointment, term of private members; chairman; quorum.

(a) The jobs investment trust board is continued. The board is a public body corporate and established to improve and otherwise promote economic development in this state.
(b) The board consists of thirteen members, five of whom serve by virtue of their respective positions. These five are the president of West Virginia university or his or her designee; the president of Marshall university or his or her designee; the chancellor of the higher education policy commission or his or her designee; the executive director of the West Virginia housing development fund; and the executive director of the West Virginia development office. One member shall be appointed by the governor from a list of two names submitted by the board of directors of the housing development fund. One member shall be appointed by the governor from a list of two names submitted by the commissioner of the division of tourism. The other six members shall be appointed from the general public by the governor. Of the members of the general public appointed by the governor, one shall be an attorney with experience in finance and investment matters, one shall be a certified public accountant, one shall be a representative of labor, one shall be experienced or involved in innovative business development and two shall be present or past executive officers of companies listed on a major stock exchange or large privately held companies: Provided, That all appointments made pursuant to the provisions of this article shall be by and with the advice and consent of the Senate.
(c) A vacancy on the board shall be filled by appointment by the governor for the unexpired term in the same manner as the original appointment. Any person appointed to fill a vacancy serves only for the unexpired term.
(d) The governor may remove any appointed member in case of incompetency, neglect of duty, moral turpitude or malfeasance in office and the governor may declare the office vacant and fill the vacancy as provided in other cases of vacancy.
(e) The chairman of the board shall be elected by the board from among the members of the board.
(f) Seven members of the board is a quorum. No action may be taken by the board except upon the affirmative vote of at least a majority of those members present or participating by such any other means as described in subsection (g) of this section, but in no event fewer than six of the members serving on the board.
(g) Members of the board may participate in a meeting of the board by means of conference telephone or similar communication equipment by means of which all persons participating in the meeting can hear each other and participation in a board meeting pursuant to this subsection shall constitute constitutes presence in person at such the meeting.
(h) The members of the board, including the chairman, may receive no compensation for their services as members of the board, but are entitled to their reasonable and necessary expenses actually incurred in discharging their duties under this article.
(i) The board shall meet on a quarterly basis or more often if necessary.
(j) The terms of the board members appointed by the governor first taking office on or after the one thousand nine hundred ninety-two effective date of the jobs investment trust act expired as designated by the governor at the time of the nomination, two at the end of the first year, two at the end of the second year, two at the end of the third year and two at the end of the fourth year. These original appointments were for, and each subsequent appointment was and shall be for, a full The governor shall appoint a member for a four-year term. Any member whose term has expired serves until his or her successor has been duly appointed and qualified. Any member is eligible for reappointment.
(k) Additionally, one member of the West Virginia House of Delegates, to be appointed by the speaker of the House of Delegates, and one member of the West Virginia Senate, to be appointed by the president of the Senate, shall serve as advisory members of the jobs investment trust board and, as advisory members, shall be ex officio, nonvoting advisory members. The governor shall appoint the two legislative ex officio advisory members who shall serve for four years or such shorter time as he or she continues to be a West Virginia legislator.
§12-7-6. Corporate powers.
The board has the power may:
(1)(i) To make Make loans to eligible businesses with or without interest secured if and as required by the board; and (ii) acquire ownership interests in eligible businesses. These investments may be made in eligible businesses that stimulate economic growth and provide or retain jobs in this state and shall be made only upon the determination by the board that the investments are prudent and meet the criteria established by the board;
(2) To accept Accept appropriations, gifts, grants, bequests and devises and to use or dispose of them to carry out its corporate purposes;
(3) To make Make and execute contracts, releases, compromises, agreements and other instruments necessary or convenient for the exercise of its powers or to carry out its corporate purposes;
(4) To collect Collect reasonable fees and charges in connection with making and servicing loans, notes, bonds, obligations, commitments and other evidences of indebtedness, in connection with making equity investments and in connection with providing technical, consultative and project assistance services;
(5) To sue Sue and be sued;
(6) To make Make, amend and repeal bylaws and rules consistent with the provisions of this article;
(7) To hire Hire its own employees, whom shall be employees of the state of West Virginia for purposes of articles ten and sixteen, chapter five of this code, and to appoint officers and consultants and to fix their compensation and prescribe their duties;
(8) To acquire Acquire, hold and dispose of real and personal property for its corporate purposes;
(9) To enter Enter into agreements or other transactions with any federal or state agency, college or university, any person and any domestic or foreign partnership, corporation, association or organization;
(10) To acquire Acquire real and personal property, or an interest in real or personal property, in its own name, by purchase or foreclosure when acquisition is necessary or appropriate to protect any loan in which the board has an interest; to sell, transfer and convey any real or personal property to a buyer; and, in the event a sale, transfer or conveyance cannot be effected with reasonable promptness or at a reasonable price, to lease real or personal property to a tenant;
(11) To purchase Purchase, sell, own, hold, negotiate, transfer or assign: (i) Any mortgage, instrument, note, credit, debenture, guarantee, bond or other negotiable instrument or obligation securing a loan, or any part of a loan; (ii) any security or other instrument evidencing ownership or indebtedness; or (iii) equity or other ownership interest. An offering of one of the above these instruments shall include the representation and qualification that the board is a public body corporate managing a venture capital fund that includes high-risk investments and, that in any transfer, sale or assignment of any interest, the transferee, purchaser or assignee accepts any risk without recourse to the jobs investment trust or to the state;
(12) To procure Procure insurance against losses to its property in amounts, and from insurers, as is prudent;
(13) To consent Consent, when prudent, to the modification of the rate of interest, time of maturity, time of payment of installments of principal or interest or any other terms of the investment, loan, contract or agreement in which the board is a party;
(14) To establish Establish training and educational programs to further the purposes of this article;
(15) To file File its own travel rules;
(16) To borrow Borrow money to carry out its corporate purpose in principal amounts and upon terms as are necessary to provide sufficient funds for achieving its corporate purpose;
(17) To take Take options in or warrants for, subscribe to, acquire, purchase, own, hold, transfer, sell, vote, employ, mortgage, pledge, assign, pool or syndicate: (i) Any loans, notes, mortgages or securities; (ii) debt instruments, ownership certificates or other instruments evidencing loans or equity; or (iii) securities or other ownership interests of or in domestic or foreign corporations, associations, partnerships, limited partnerships, limited liability partnerships, limited liability companies, joint ventures or other private enterprise to foster economic growth, jobs preservation and creation in the state of West Virginia and all other acts that carry out the board's purpose;
(18) To contract Contract with either Marshall university or West Virginia university, or both, for the purpose of retaining the services of, and paying the reasonable cost of, services performed by the institution for the board in order to effectuate the purposes of this article;
(19) To enter Enter into collaborative arrangements or contracts with private venture capital companies when considered advisable by the board;
(20) To provide Provide equity financing for any eligible business that will stimulate economic growth and provide or retain jobs in this state and to hold, transfer, sell, assign, pool or syndicate, or participate in the syndication of, any loans, notes, mortgages, securities, debt instruments or other instruments evidencing loans or equity interest in furtherance of the board's corporate purposes;
(21) To form Form partnerships, create subsidiaries or take all other actions necessary to qualify as a small business investment company under the United States Public Law (85-699) Small Business Investment Act, as amended; and
(22) To provide Provide for staff payroll and make purchases in the same manner as the housing development fund;
(23) Indemnify its members, directors, officers, employees and agents relative to actions and proceedings to which they have been made parties and make advances for expenses relative thereto and purchase and maintain liability insurance on behalf of those persons all to the same extent as authorized for West Virginia business corporations under present or future laws of the state applicable to business corporations generally; and
(24) Contract for the provision of legal services by private counsel and, notwithstanding the provisions of article three, chapter five of this code, counsel may, but is not limited to, represent the board in court, negotiate contracts and other agreements on behalf of the board, render advice to the board on any matter relating thereto, prepare contracts and other agreements and provide any other legal services requested by the board.
§12-7-8a. New millennium fund; new millennium fund promissory notes; nonincentive tax credits; rulemaking.

(a) The new millennium fund is established continued to permit the board to better fulfill its mission to mobilize financing and capital for emerging, expanding and restructuring businesses in the state. New millennium fund moneys are to consist of all appropriations for use by the jobs investment trust board made by the Legislature subsequent to the thirty-first day of December, one thousand nine hundred ninety-nine, and funds borrowed from private or institutional lenders by the board through the issuance of promissory notes. Fund moneys may be held in a separate account or accounts by or at the West Virginia housing development fund for the board until the board disburses any portion of the funds. Fund moneys that are not set aside or otherwise designated for paying interest on the promissory notes may be used by the board in accordance with and to effectuate the purposes of this article. The board may impose reasonable fees and charges associated with its investment of funds from the new millennium fund in eligible businesses to be paid in any combination of money, warrants or equity interests.
(b) Without limiting the powers otherwise enumerated in this article, the board has the power to may: (1) Sell and transfer portions of the nonincentive tax credits created, issued and transferred to the board pursuant to the provisions of this section to contracting taxpayers and/or their assigns in return for the payments described in subsection (f) of this section; (2) issue or provide promissory notes on loans made to the board having terms of up to ten years on a zero-coupon basis or otherwise; (3) enter into put options or similar commitment contracts with taxpayers that would be for terms of up to ten years committing, at the board's option, to sell and transfer to the contracting taxpayers or their assigns at the end of the term and as soon after the term as is reasonable under the circumstances portions of the nonincentive tax credits created, issued and transferred to the board pursuant to this section; (4) grant, transfer and assign the benefits of the put options or similar commitment contracts as collateral to secure the board's obligations pursuant to its promissory notes; and (5) satisfy the board's payment obligations under its promissory notes from assets of the board, other than the benefits of the put options or similar commitment contracts, then to effect a corresponding cancellation of the board's related nonincentive tax credit commitment; and (6) satisfy the board's payment obligations under its promissory notes from the benefits of the put options or similar commitment contracts, then to effect a corresponding sale and transfer of nonincentive tax credits. The terms and conditions of the promissory notes, put options or similar commitment contracts shall be consistent with the purposes of this section, and approved by board resolution, and may be different for separate transactions.
(c) Without limiting the powers otherwise enumerated in this article and with regard to the new millennium fund, the board has and may exercise all powers necessary to further the purposes of this section, including, but not limited to, the power to commit, sell and transfer nonincentive tax credits up to the total amount of thirty million dollars.
(d) The board may issue its promissory notes pursuant to this section in amounts totaling no more than six million dollars in each of the fiscal years ending in two thousand one, two thousand two, two thousand three, two thousand four and two thousand five and may issue its nonincentive tax credit commitments in amounts totaling no more than six million dollars in each of the fiscal years ending in two thousand one, two thousand two, two thousand three, two thousand four and two thousand five. The board may agree to sell and transfer, at its option, nonincentive tax credits to taxpayers ten years after the date of its commitments, and as soon thereafter as it is reasonable under the circumstances.
(e) Prior to committing to the sale and transfer of any nonincentive tax credits, the board shall first determine that:
(1) The new millennium fund moneys to be received in relationship to the commitment shall be used for the development, promotion and expansion of the economy of the state; and
(2) The existence and pledge of a put option or similar commitment contract that is supported by the nonincentive tax credits that are committed by the board is a material inducement to the private or institutional lender transferring moneys to the board to be placed in the new millennium fund.
(f) The board may sell and transfer nonincentive tax credits only in conjunction with the satisfaction of its obligations under its promissory notes issued pursuant to this section. Each original sale and transfer of nonincentive tax credits by the board shall be consummated upon payment to the board, or for its benefits, of an amount equal to the dollar amount of the nonincentive tax credits sold and transferred. minus the amount of any federal tax deduction lost by the purchasing taxpayer, if any, resulting from the purchase and projected use of the nonincentive tax credit in satisfying state tax obligations The nonincentive tax credits sold and transferred by the board pursuant to this section shall be claimed as a credit on the tax returns for the year or years in which the nonincentive tax credits are sold and transferred by the board. The amount of the nonincentive tax credit that exceeds the taxpayer's tax liability for the taxable year in the year of the purchase may be carried to succeeding taxable years until used in full up to two years after the year of purchase and may not be carried back to prior taxable years. Any nonincentive tax credit sold and transferred by the board that remains outstanding after the third taxable year subsequent to and including the year of the transfer is forfeited.
(g) Nonincentive tax credits are created, issued and transferred by the state to the board in a total amount of thirty million dollars to be used by taxpayers, including persons, firms, corporations and all other business entities, to reduce the tax liabilities imposed upon them pursuant to articles twelve-a, thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and twenty-four, chapter eleven of this code. The total amount of nonincentive tax credits that are created, issued and transferred to the board is thirty million dollars. The nonincentive tax credits are freely transferable to subsequent transferees. The board shall immediately notify the president of the Senate, the speaker of the House of Delegates and the governor in writing if and when any nonincentive tax credits are sold and transferred by the board.
(h) In conjunction with the department of tax and revenue, the board shall develop a system for: (i) Registering nonincentive tax credits, commitments for the sale and transfer of nonincentive tax credits, the assignments of the commitments and the assignments of the nonincentive tax credits; and (ii) certifying nonincentive tax credits so that when nonincentive tax credits are claimed on a tax return, they may be verified as validly issued by the board, properly taken in the year of claim and in accordance with the requirements of this section.
(i) The board may promulgate, repeal, amend and change rules consistent with the provisions of this article to carry out the purposes of this section. These rules are not subject to the provisions of chapter twenty-nine-a of this code, but shall be filed with the secretary of state.
§12-7-11. Documentary materials concerning trade secrets; commercial, financial, or personal information; confidentiality.

Any documentary material or data made or received by the board for the purpose of furnishing assistance, to the extent that such the material or data consists of trade secrets, commercial, financial or personal information regarding the financial position or activities of such business or person, shall not be considered public records and shall be exempt from disclosure pursuant to the provisions of chapter twenty-nine-b of this code. Any discussion or consideration of such the trade secrets, commercial, financial or personal information may be held by the board in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code: Provided, That the board shall make public the following information regarding executed investments: (1) The names and addresses of the principals of the business and its board of directors; (2) the location or locations of the projects; (3) the amount of the investment or financial assistance provided by the board; (4) the purpose of the investment or financial assistance; (5) the maturity, interest rate and other pertinent terms of the investment; (6) the fixed assets which serve as security for the investment; and (7) the names and addresses of all persons holding twenty-five percent or more of the equity of the entity receiving investment assistance: Provided, however, That the board shall keep available in its offices for inspection by any citizen of this state the annual report prepared pursuant to the requirements of section twelve of this article and the annual audit report prepared pursuant to the requirements of sections nine and fourteen of this article."
The bill was then ordered to third reading.
Com. Sub. for S. B. 516, Establishing eastern panhandle highway authority; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, section one, line two, by striking out the word "highway" and inserting in lieu thereof the word "transportation".
The bill was then ordered to third reading.
Com. Sub. for S. B. 518, Relating to policemen and firemen required to work during holidays; compensation; on second reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid at the foot of Unfinished Business.
Com. Sub. for S. B. 554, Continuing guardianship or conservatorship of deceased protected persons; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 653, Providing that certain judges not required to contribute to retirement system; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 678, Providing reduced tax rate applies to certain underground mines; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page three, section three, after line thirty-seven, by striking out subsection (f) in its entirety and inserting in lieu thereof the following:
"(f) Reduction of severance tax rate. -- For tax years beginning after the eleventh day of April, one thousand nine hundred ninety-seven effective date of this subsection, any person exercising the privilege of engaging within this state in the business of severing coal for the purposes provided in subsection (a) of this section shall be allowed a reduced rate of tax on coal mined by underground methods in accordance with the following:
(i) (1)(A) For coal mined by underground methods from seams with an average thickness of thirty-seven inches to forty-five inches, the tax imposed in subsection (a) of this section shall be two percent of the gross value of the coal produced. For coal mined by underground methods from seams with an average thickness of less than thirty-seven inches, the tax imposed in subsection (a) of this section shall be one percent of the gross value of the coal produced. Gross value is determined from the sale of the mined coal by the producer. This rate of tax includes the thirty-five one hundredths of one percent additional severance tax imposed by the state for the benefit of counties and municipalities as provided in section six of this article.
(ii)(B) This The reduced rate of tax described in paragraph (A) of this subdivision applies to any new underground mine producing coal after the eleventh day of April, one thousand nine hundred ninety-seven effective date of this subsection, from seams of less than forty-five inches in average thickness or any existing mine that has not produced coal from seams forty-five inches or less in thickness in the one hundred eighty days immediately preceding the eleventh day of April, one thousand nine hundred ninety-seven effective date of this subsection.
(2)(A) Notwithstanding any provision of subdivision (1) of this subsection to the contrary, for coal mined by underground methods from seams with an average thickness of less than thirty-two inches, the tax imposed in subsection (a) of this section shall be one percent of the gross value of the coal produced. Gross value is determined from the sale of the mined coal by the producer. This rate of tax includes the thirty-five one hundredths of one percent additional severance tax imposed by the state for the benefit of counties and municipalities as provided in section six of this article.
(B) The rate of tax described in paragraph (A) of this subdivision applies to coal mined by underground methods from seams of less than thirty-two inches in average thickness from any new or existing mine after the effective date of the amendment and reenactment of this section in the year two thousand four, from any underground coal mine, without regard to whether the mine was producing coal in the one hundred eighty days immediately preceding the eleventh day of April, one thousand nine hundred ninety-seven.
(iii)(3) The seam thickness shall be based on the weighted average isopach mapping of actual coal thickness by mine as certified by a professional engineer."
The bill was then ordered to third reading.
Com. Sub. for S. B. 700, Requiring state agencies make timely payments for telecommunications services; other provisions; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION.
§5A-7-4a. Payment of legitimate uncontested invoices for telecommunications services; procedures and powers of the information and communications division and secretary of administration.


(a) The Legislature finds that it is in the best interest of the state, its spending units and those vendors supplying telecommunications services to the state and its spending units that any properly registered and qualified vendor supplying telecommunications services to two or more spending units under a shared account is entitled to prompt payment upon presentation of a legitimate uncontested invoice for telecommunications services to the division, as provided in the following subsections.

(b) To facilitate the administration and payment of telecommunications services, there is hereby created in the state treasury a special revenue account to be known as the 'Telecommunication Services Payment and Reserve Fund.' All moneys transferred from state spending units pursuant to the requirements of this section shall be deposited in the account. Expenditures from the fund shall be made by the director for the exclusive purposes set forth in this section: Provided, That no more than one hundred and fifty thousand dollars or the actual amount collected pursuant to subsection (i) of this section in any fiscal year, whichever is less, may be expended from the fund in any fiscal year to defray the costs of administration of this section.

(c) Upon receipt of any telecommunications charges from a properly registered and qualified vendor, the director shall fully apportion telecommunications charges among spending units based on the spending unit's service and usage, as determined by the director. The director shall send each spending unit a statement of the spending unit's proportionate share of any telecommunications charges within thirty days of receipt by the division of the invoice detailing the telecommunications charges. The statement is to provide a date of no more than thirty calendar days from the date the division sends the statement by which the spending unit shall submit payment or transfer to the telecommunications services payment and reserve fund all funds necessary to pay for the spending unit's charges in full: Provided, That the statement sent in last month of the fiscal year shall provide that the transfer shall be made by the thirty-first day of July. If feasible for the spending unit, the preferable method of payment is by intergovernmental transfer.

(d) All spending units shall budget for telecommunications service expenses. Prior to the date provided in each statement sent to a spending unit pursuant to subsection (c) of this section, each spending unit shall pay or transfer the statement amount to the telecommunication services payment and reserve fund.

(e) If a spending unit fails to pay or transfer funds by the date specified in the statement sent pursuant to subsection (c) of this section, the secretary of the department of administration shall transfer to the telecommunication services payment and reserve fund the statement amount plus an additional penalty in the amount of three percent of the statement amount, from any funds supporting the administration of that spending unit: Provided, That the secretary shall complete all such transfers by the thirty-first day of July of each fiscal year. Upon exercising a transfer under the authority of this subsection, the director shall provide a notification to the spending unit including, but not limited to, the date, time, total amount of the transfer, statement amount and penalty amount. If a participating spending unit does not maintain funds in the state treasury, the secretary may transfer funds by wire from any depository outside the state treasury. A participating spending unit maintaining funds in depositories outside the state treasury shall furnish the secretary access to those funds for the exclusive purposes of this section.

(f) If a spending unit contests any portion of its statement, it shall nonetheless remit payment for the entire statement amount and notify the division in writing within thirty days of statement receipt by the spending unit. The secretary shall consider any contested apportionments of charges and provide a final determination on the apportionment of legitimate charges. Corrections or adjustments to apportionments may be effected on future transfer payments: Provided, That legitimate vendor charges are to be fully apportioned. If the basis of the contest is vendor error, overcharge, service failure, failure to terminate services as required by the division, or other failure of or error in vendor performance, the director shall withhold the contested amount from current or future vendor payments, pending resolution by the secretary, and the director shall bring the contested matter to the attention of the vendor. The director and the vendor shall attempt to resolve the matter in good faith. Within ninety days of the receipt of the vendor's invoice or a time period mutually agreed to by the vendor and secretary, the secretary shall make the final decision as to the legitimacy of the contested amount and determine if payment is warranted. If the final decision of the secretary is to refuse to pay any amount, the vendor may proceed in accordance with the provisions of article two, chapter fourteen of this code.

(g) The director shall provide for full payment of legitimate, uncontested telecommunications charges within ninety days of receipt of an invoice detailing the telecommunications charges by the division. Payment for the charges shall be made by the director from the telecommunications services payment and reserve fund.

(h) The director may direct the discontinuance of telecommunications services to any spending unit that fails to comply with the provisions of this section and the vendor supplying telecommunication services shall comply with the written direction of the director on discontinuance of services.

(i) To help defray the additional cost of administering this section, the director may assess a proportional fee of up to one hundred fifty thousand dollars in aggregate per fiscal year to the participating spending units based on each spending unit's portion of service and usage. This fee is to be included in the statement sent to spending units pursuant to subsection (c) of this section and transferred to the telecommunication service payment and reserve fund by the date specified in the statement for the transfer of payment.

(j) Notwithstanding any other provision of this code to the contrary, for purposes of this section, an invoice is considered received by the division on the date on which the invoice is marked as received by the division, or three business days after the date of the postmark made by the United States postal service as evidenced on the envelope in which the invoice is mailed, whichever is earlier: Provided, That if an invoice is received by the division prior to the date on which the telecommunications services covered by the invoice are delivered or fully performed, for purposes of determining the ninety day time period for payment in subsection (g) of this section, the invoice is considered received on the date on which the telecommunications services covered by the invoice were delivered or fully performed.

(k) For purposes of this section, 'telecommunications service' means and includes not only telephone service regulated under chapter twenty-four of this code or under federal law, but also may include, at the discretion of the secretary of administration, wireless service, voice over Internet protocol service, Internet service and any other service or equipment used for the electronic transmission of voice or data.

(l) The director may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the purposes of this section. The initial rule filed by the division pursuant to this subsection shall be filed as an emergency rule."

The bill was then ordered to third reading.

Com. Sub. for S. B. 701, Authorizing certain taxes imposed by municipalities; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, after the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §8-13C-1, §8-13C-2, §8-13C-3, §8-13C-4, §8-13C-5, §8-13C-5a, §8-13C-6, §8-13C-7, §8-13C-8, §8-13C-9, §8-13C-10, §8-13C-11, §8-13C-12 and §8-13C-13; that §11-9-2, §11-9-3, §11-9-4, §11-9-5, §11-9-6, §11-9-8 and §11-9-10 of said code be amended and reenacted; and that §11-10-3 of said code be amended and reenacted, all to read as follows:


CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 13C. MUNICIPAL TAX IN LIEU OF BUSINESS AND OCCUPATION TAX AND MUNICIPAL TAXES APPLICABLE TO PENSION FUNDS.
§8-13C-1. Findings.

The Legislature finds that:

(a) Imposing additional taxes creates an extra burden on the citizens of the state;

(b) Imposing additional taxes can be detrimental to the economy of the state;

(c) Imposing additional taxes is only proper under certain circumstances;

(d) For many municipalities with severe unfunded liabilities of the police and fire pension funds, all available sources of local revenue have been exhausted. Property taxes are at the maximum allowed by the state constitution and local business and occupation taxes and utility taxes are at the maximum rates allowed by state law. Other fees have reached the economic maximum and are causing relocation of business outside the municipal boundaries;

(e) For many municipalities with severe unfunded police and fire pension fund liabilities, revenue from existing sources has become stagnant over the past few years with no expectation of significant future growth;

(f) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds are now close to equaling the city payrolls for police and fire protection and will rise to exceed those payrolls within a ten-year period;

(g) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds now constitute a large percentage of those municipalities total budget and will rise to an even larger percentage of the available revenues in the next ten years. Payment and benefit levels are dictated to the municipalities by state law;

(h) As the required pension payments rise, many of the municipalities with severe unfunded police and fire pension fund liabilities will find it impossible to maintain at minimum levels necessary and proper, city services including, but not limited to, police and fire protection, street maintenance and repair and sanitary services;

(i) For some of the municipalities with severe unfunded liabilities of the police and fire pension funds, the combination of the steeply rising pension obligations and the stagnant revenue sources raise the real possibility of municipal bankruptcy in the near and predictable future. If this happens, pensioners would either not receive the full benefits which they have been promised or pressure would be placed on the state to fund these programs;

(j) For a municipality that has the most severe unfunded liability in its pension funds, paying off the unfunded liability in a timely manner would cause tremendous financial hardship and the loss of many services that would otherwise be provided to the municipality's citizens;

(k) Only for a municipality that has the most severe unfunded liability in its pension funds would the imposition of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any combination of those taxes be an appropriate method of addressing the unfunded liability; and

(l) Only for a municipality that does not impose or ceases to impose a business and occupation or privilege tax would the imposition of an alternative municipal sales and service tax and an alternative municipal use tax be appropriate.
§8-13C-2. Definitions.

For the purposes of this article:

(a) 'Alternative municipal sales and service tax' means the tax authorized to be imposed by subsection (b), section four of this article only if a municipality does not impose or ceases to impose the business and occupation or privilege tax authorized in section five, article thirteen of this chapter;

(b) 'Alternative municipal use tax' means the tax authorized to be imposed by subsection (b), section five of this article only if a municipality does not impose or ceases to impose the business and occupation or privilege tax authorized in section five, article thirteen of this chapter;

(c) 'Qualifying municipality' means any municipality, as defined in section two, article one of this chapter:

(1) In which the weighted average of the percentages to which its policemen's and firemen's pension and relief funds are fully funded is three percent or less on the date of adoption of the ordinance imposing the tax; and

(2) That has satisfied the requirements set forth in section eleven of this article;

(d) 'Pension relief municipal occupational tax' means the tax authorized to be imposed by section three of this article and for which the use of the proceeds of the tax are restricted by section nine of this article;

(e) 'Pension relief municipal sales and service tax' means the tax authorized to be imposed by subsection (a), section four of this article and for which the use of the proceeds of the tax are restricted by section nine of this article;

(f) 'Pension relief municipal use tax' means the tax authorized to be imposed by subsection (a), section five of this article and for which the use of the proceeds of the tax are restricted by section nine of this article; and

(g) 'Taxable employee' means any individual:

(1) Who holds employment with an employer with a place of business located within the qualifying municipality electing to impose the municipal payroll tax pursuant to this article; and

(2) Whose salaries, wages, commissions and other earned income that would be included in federal adjusted gross income for the year is more than ten thousand dollars per year.
§8-13C-3. Pension relief municipal occupational tax.

(a) Effective on and after the first day of July, two thousand five, each qualifying municipality, as defined in section two of this article, has the plenary power and authority to impose, by ordinance, a pension relief municipal occupational tax on taxable employees. Any pension relief municipal occupational tax imposed pursuant to this section shall meet the following requirements:

(1) The tax shall be imposed at a rate of one percent or less;

(2) The tax shall be imposed at a uniform rate; and

(3) The tax rate shall be applied only to salaries, wages, commissions and other earned income of taxable employees that would be included in federal adjusted gross income for the year. The tax rate may not be applied to other forms of income including, but not limited to, intangible income and net profit from a business.

(b) Each employer with a taxable employee, during each pay period, shall withhold from the taxable employee's salary the amount of the tax as computed by applying the appropriate tax rate to the taxable employee's salary during that pay period and remit the withholdings to the appropriate municipal taxing authority.
§8-13C-4. Municipal sales and service taxes.


(a) Effective on and after the first day of July, two thousand five, each qualifying municipality, as defined in section two of this article, has the plenary power and authority to impose, by ordinance, a pension relief municipal sales and service tax at a rate not to exceed one percent, subject to the provisions of this article.

(b) Effective on and after the first day of July, two thousand five, notwithstanding subsection (a) of this section, and in addition thereto in the case of a qualifying municipality, any municipality that does not impose, or ceases to impose, the business and occupation or privilege tax authorized by section five, article thirteen of this chapter has the plenary power and authority to impose, by ordinance, an alternative municipal sales and service tax at a rate not to exceed one percent, subject to the provisions of this article.

(c) Any municipal sales and service tax imposed under the authority granted by this section is subject to the following:

(1) The base of a municipal sales and service tax imposed pursuant to this section shall be identical to the base of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the municipality, subject to the following:

(A) Except for the exemption provided in section nine-f, article fifteen, chapter eleven of this code, all exemptions and exceptions from consumers sales and service tax apply to a municipal sales and service tax imposed pursuant to this section; and

(B) Sales of gasoline and special fuel are not subject to a municipal sales and service tax imposed pursuant to this section;

(2) Any municipal sales and service tax imposed pursuant to this section applies solely to tangible personal property, custom software and services that are sourced to the municipality. The sourcing rules set forth in article fifteen-b, chapter eleven of this code, including any amendments thereto, apply to municipal sales and use taxes levied pursuant to this article;

(3) Any municipality that imposes a municipal sales and service tax pursuant to this section or changes the rate of a municipal sales and service tax imposed pursuant to this section shall notify the tax commissioner pursuant to section six of this article;

(4) Any municipality that imposes a municipal sales and service tax pursuant to this section may not administer or collect the tax, but shall use the services of the tax commissioner to administer, enforce and collect the tax;

(5) Any municipal sales and service tax imposed pursuant to this section shall be imposed in addition to the consumer sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the municipality and, except as exempted or excepted, all sales made and services rendered within the boundaries of the municipality shall remain subject to the tax levied by that article; and

(6) Any municipal sales and service tax imposed pursuant to this section shall be imposed in addition to any tax imposed pursuant to section one, article eighteen, chapter seven of this code, sections six and seven, article thirteen of this chapter and section twelve, article thirty-eight of this chapter.
§8-13C-5. Municipal use tax.

(a) Effective on and after the first day of July, two thousand five, each qualifying municipality, as defined in section two of this article, that imposes a pension relief municipal sales and service tax pursuant to this article shall impose, by ordinance, a pension relief municipal use tax at the same rate that is set for the pension relief municipal sales and service tax.

(b) Effective on and after the first day of July, two thousand five, each municipality that imposes an alternative municipal sales and service tax pursuant to this article shall impose, by ordinance, an alternative municipal use tax at the same rate that is set for the alternative municipal sales and service tax.

(c) The base of a municipal use tax imposed pursuant to this section shall be identical to the base of the use tax imposed pursuant to article fifteen-a, chapter eleven of this code on the use of tangible personal property, custom software and taxable services within the boundaries of the municipality, subject to the following:

(1) Except for the exemption provided in section nine-f, article fifteen, chapter eleven of this code, all exemptions and exceptions from the use tax apply to a municipal use tax imposed pursuant to this section; and

(2) Uses of gasoline and special fuel are not subject to a municipal use tax imposed pursuant to this section when the use is subject to the tax imposed by article fourteen-c, chapter eleven of this code.

(d) Any municipality that imposes a municipal use tax pursuant to this section or changes the rate of a municipal use tax imposed pursuant to this section shall notify the tax commissioner pursuant to section six of this article.

(e) Any municipality that imposes a municipal use tax pursuant to this section may not administer or collect the tax, but shall use the services of the tax commissioner to administer, enforce and collect the taxes.

(f) Any municipal use tax imposed pursuant to this section shall be imposed in addition to the use tax imposed pursuant to article fifteen-a, chapter eleven of this code on the use of tangible personal property, custom software or taxable services within the boundaries of the municipality and, except as exempted or excepted, all use of tangible personal property, custom software or taxable services within the boundaries of the municipality shall remain subject to the tax levied by said article.

(g) Any municipal use tax imposed pursuant to this section shall be imposed in addition to any tax imposed pursuant to section one, article eighteen, chapter seven of this code, sections six and seven, article thirteen of this chapter and section twelve, article thirty-eight of this chapter.
§8-13C-5a. Credit for sales tax paid to another municipality.


(a) Credit against municipal use tax. - A person is entitled to a credit against a use tax imposed by a municipality pursuant to section five of this article on the use of a particular item of tangible personal property, custom software or service equal to the amount, if any, of sales tax lawfully paid to another municipality for the acquisition of that property or service: Provided, That the amount of credit allowed may not exceed the amount of use tax imposed on the use of the property or service in the municipality of use.

(c) Definitions. - For purposes of this section:

(1) 'Municipality' means a municipality, as defined in section two, article one of this chapter, or a comparable unit of local government in another state;

(2) 'Sales tax' includes a sales tax or compensating use tax
lawfully imposed on the use of tangible personal property, custom software or a service by the municipality or county, as appropriate, in which the sale or use occurred; and

(3) 'State' includes the fifty states of the United States and the District of Columbia but does not include any of the several territories organized by Congress.

(d) No credit is allowed under this section for payment of any sales or use taxes imposed by this state or any other state.
§8-13C-6. Notification to tax commissioner; responsibilities of tax commissioner; application of state tax law.


(a) Any municipality that imposes a municipal sales and service tax and a municipal use tax pursuant to this article or changes the rate of the taxes shall notify the tax commissioner of the imposition of the taxes or the change in the rate of the taxes within thirty days of enacting the ordinance imposing the taxes or changing the rate of the taxes. A municipal sales and service tax and a municipal use tax imposed pursuant to this article or a change in the rate of the taxes is not effective until at least ninety days after the ordinance imposing the taxes is enacted.

(b) The tax commissioner is responsible for collecting, enforcing and administering any municipal sales and service tax and any municipal use tax imposed pursuant to this article in the same manner as the state sales and service tax imposed pursuant to article fifteen, chapter eleven of this code and the state use tax imposed pursuant to article fifteen-a of this code. Additionally, the tax commissioner may charge a fee not to exceed the lesser of the cost of the service provided or one percent of the proceeds from the municipal sales and service tax.

(c) The state consumers sales and service tax law, set forth in article fifteen, chapter eleven of this code, and the amendments to that article and the rules of the tax commissioner relating to the laws shall apply to a municipal sales and service tax imposed pursuant to this article to the extent the rules and laws are applicable.

(d) The state use tax law, set forth in article fifteen-a, chapter eleven of this code, and the amendments to that article and the rules of the tax commissioner relating to the laws shall apply to a municipal use tax imposed pursuant to this article to the extent the rules and laws are applicable.

(e) Any term used in this article or in an ordinance adopted pursuant to this article that is defined in articles fifteen, fifteen-a and fifteen-b, chapter eleven of this code, as amended, shall have the same meaning when used in this article or in an ordinance adopted pursuant to this article, unless the context in which the term is used clearly requires a different result.

(f) Any amendments to articles nine, ten, fifteen, fifteen-a and fifteen-b, chapter eleven of this code, shall automatically apply to a sales or use tax imposed pursuant to this article, to the extent applicable.

(g) Each and every provision of the 'West Virginia Tax Procedure and Administration Act' set forth in article ten, chapter eleven of this code applies to the taxes imposed pursuant to this article, except as otherwise expressly provided in this article, with like effect as if that act were applicable only to the taxes imposed by this article and were set forth in extenso in this article.

(h) Each and every provision of the 'West Virginia Tax Crimes and Penalties Act' set forth in article nine, chapter eleven of this code applies to the taxes imposed pursuant to this article with like effect as if that act were applicable only to the taxes imposed pursuant to this article and were set forth in extenso in this article.
§8-13C-7. Municipal sales and service tax and use tax fund; deposit and remittance of collections.


(a) There is created a special revenue account in the state treasury designated the 'municipal sales and service tax and use tax fund' which is an interest-bearing account and shall be invested in the manner described in section nine-c, article six, chapter twelve of this code with the interest and other return earned a proper credit to the fund. A separate subaccount within the fund shall be established for each municipality that imposes a municipal sales and service tax and use tax pursuant to this article.

(b) The tax commissioner shall deposit all the proceeds from a municipal sales and service tax and a municipal use tax collected for each municipality minus any fee for collecting, enforcing and administering taxes in the appropriate subaccount. All moneys collected and deposited in the fund shall be remitted at least quarterly by the state treasurer to the treasurer of the appropriate municipality.
§8-13C-8. Printed catalogs.

Local tax rate changes made pursuant to sections four and five of this article apply to purchases from printed catalogs where the purchaser computed the tax based upon the local tax rate published in the catalog only on and after the first day of a calendar quarter after a minimum of one hundred twenty days' notice to the seller.
§8-13C-9. Restriction on use of certain revenues.

(a) All proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax imposed pursuant to this article shall be used solely for the purpose of reducing the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds of the qualifying municipality imposing the tax. The proceeds used for this purpose shall be in addition to the minimum annual contribution required by section twenty, article twenty-two of this chapter.

(b) A qualifying municipality loses its authority to impose a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax pursuant to this article after:

(1) The unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds is eliminated; or

(2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any combination of these taxes to eliminate the unfunded actuarial accrued liability of the qualifying municipality's policemens' and firemens' pension and relief funds.
§8-13C-10. Conflict; partial unconstitutionality.

(a) If a court of competent jurisdiction finds that the provisions of this article and the provisions of articles fifteen, fifteen-a and fifteen-b, chapter eleven of this code conflict and cannot be harmonized, then the provisions of said articles shall control.

(b) If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article is for any reason held to be invalid, unlawful or unconstitutional, that decision does not affect the validity of the remaining portions of this article or any part thereof: Provided, That if this article is held to be unconstitutional under section thirty-nine, article VI of the constitution of West Virginia, this severability clause shall not apply.
§8-13C-11. Additional requirements for authority to impose certain taxes.


(a) The authority to impose the pension relief municipal occupational tax, the pension relief municipal sales and service tax and the pension relief municipal use tax, all provided in this article, is not effective until a municipality wishing to impose the taxes presents to the joint committee on government and finance a plan to remove the unfunded liabilities of its police and fire pension funds and the necessary changes in West Virginia law have been enacted to allow for implementation of the municipal plan.

(b) Notwithstanding any other provision of this code to the contrary, no cost-of-living increases or other benefit increases, and no new benefits, may be granted to or received by any member or beneficiary of a policemen's and firemen's pension and relief funds of a municipality during any period that the municipality imposes a pension relief municipal occupational tax, a pension relief municipal sales and service tax, the pension relief municipal use tax or any combination thereof authorized under this chapter.
§8-13C-12. Limited authority to impose tax.

(a) Notwithstanding any other provision of this code to the contrary, no county, board, political subdivision or any other agency or entity other than a municipality may impose an alternative municipal sales and service tax, an alternative municipal use tax, a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any combination of these taxes.

(b) No subsequent amendment to this code shall supersede the provisions of subsection (a) of this section unless the amendment specifically states that the provisions of said subsection of this section are superseded.
§8-13C-13. Study.

The chief technology officer, appointed pursuant to article one-b, chapter five of this code, shall conduct a study on the cost for the tax commissioner to implement the taxes that may be imposed pursuant to this article. The chief technology officer shall report the findings and recommendations to the joint committee on government and finance before the first day of December, two thousand four.


CHAPTER 11. TAXATION.

ARTICLE 9. CRIMES AND PENALTIES.

§11-9-2. Application of this article.


(a) The provisions of this article apply to the following taxes imposed by this chapter: (1) Inheritance and transfer taxes and estate taxes imposed by article eleven of this chapter; (2) business registration tax imposed by article twelve of this chapter; (3) minimum severance tax on coal imposed by article twelve-b of this chapter; (4) corporate license tax imposed by article twelve-c of this chapter; (5) business and occupation tax imposed by article thirteen of this chapter; (6) severance tax imposed by article thirteen-a of this chapter; (7) telecommunications tax imposed by article thirteen-b of this chapter; (8) gasoline and special fuels excise tax imposed by article fourteen of this chapter; (9) motor fuels excise tax imposed by article fourteen-c of this chapter; (10) motor carrier road tax imposed by article fourteen-a of this chapter; (11) interstate fuel tax agreement authorized by article fourteen-b of this chapter; (12) consumers sales and service tax imposed by article fifteen of this chapter; (13) use tax imposed by article fifteen-a of this chapter; (14) tobacco products excise tax imposed by article seventeen of this chapter; (15) soft drinks tax imposed by article nineteen of this chapter; (16) personal income tax imposed by article twenty-one of this chapter; (17) business franchise tax imposed by article twenty-three of this chapter; (18) corporation net income tax imposed by article twenty-four of this chapter; and (19) health care provider tax imposed by article twenty-seven of this chapter.

(b) The provisions of this article also apply to the West Virginia tax procedure and administration act in article ten of this chapter and to any other articles of this chapter when application is expressly provided for by the Legislature.

(c) The provisions of this article also apply to municipal sales and use taxes imposed pursuant to article thirteen-c, chapter eight of this code; the charitable bingo fee imposed by sections six and six-a, article twenty, chapter forty-seven of this code; the charitable raffle fee imposed by section seven, article twenty-one of said chapter; and the charitable raffle boards and games fees imposed by section three, article twenty-three of said chapter.

(d) Each and every provision of this article applies to the articles of this chapter listed in subsections (a), (b) and (c) of this section, with like effect, as if the provisions of this article were applicable only to the tax and were set forth in extenso in this article.
§11-9-3. Definitions.


For the purposes of this article, the term:

(1) 'Person' means any individual, firm, partnership, limited partnership, copartnership, joint venture, association, corporation, municipal corporation, organization, receiver, estate, trust, guardian, executor, administrator and any officer, employee or member of any of the foregoing who, as such an officer, employee or member, is under a duty to perform or is responsible for the performance or nonperformance of the act in respect of which a violation occurs under this article.

(2) 'Return or report' means any return or report required to be filed by any article of this chapter imposing any tax to which this article applies as specified in section two of this article or by any other article of this code pursuant to which a tax or fee is imposed that is collected by the tax commissioner as specified in section two of this article.

(3) 'Tax' or 'taxes' means any tax to which this article applies, as specified in section two of this article, and includes additions to tax, penalties and interest unless the intention to give it a more limited meaning is disclosed by the context in which the term 'tax' or 'taxes' is used.

(4) 'Tax commissioner' or 'commissioner' means the tax commissioner of the state of West Virginia or his or her delegate.

(5) 'This chapter' means chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, and shall include only those articles of chapter eleven of this code listed in section two of this article.

(6) 'Willfully' means the intentional violation of a known legal duty to perform any act, required to be performed by any provision of this chapter or article thirteen-c, chapter eight of this code, in respect of which the violation occurs: Provided, That the mere failure to perform any act shall not be a willful violation under this article. A willful violation of this article requires that the defendant had knowledge of or notice of a duty to perform such an act and that the defendant, with knowledge of or notice of such that duty, intentionally failed to perform such the act.

(7) 'Evade' means to willfully and fraudulently commit any act with the intent of depriving the state of payment of any tax which there is a known legal duty to pay under this chapter.

(8) 'Fraud' means any false representation or concealment as to any material fact made by any person with the knowledge that it is not true and correct, with the intent that such the representation or concealment be relied upon by the state.
§11-9-4. Failure to pay tax or file return or report.

Any person required by any provision of this chapter, or article thirteen-c, chapter eight of this code to pay any tax, or to file any return or report, who willfully fails to pay such the tax, or willfully fails to file such the return or report, more than thirty days after the date such the tax is required to be paid by law, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one two thousand five hundred dollars, or imprisoned in the county jail not more than six months, or both fined and imprisoned. Each failure to pay tax, or file a return or report, more than thirty days after its due date for any tax period is a separate offense under this section and punishable accordingly: Provided, That thirty days prior to instituting criminal proceedings under this section, the tax commissioner shall give the person written notice of any failure to pay a tax or to file a return or report. Such notice Notice shall be served on the person by certified mail or by personal service. The provisions of this section shall not apply to the business franchise registration tax imposed by article twelve of chapter eleven.
§11-9-5. Failure to account for and pay over another's tax.


Any person required by any provision of this chapter or article thirteen-c, chapter eight of this code to collect, or withhold, account for and pay over any tax, who willfully fails to truthfully account for and pay over such the tax in the manner required by law, more than thirty days after the date such the tax is required to be accounted for and paid over by law, is guilty of a felony if the amount of tax not paid over is one thousand dollars or more and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than twenty-five thousand dollars or imprisoned in the penitentiary a correctional facility not less than one nor more than three years, or, in the discretion of the court be confined in the county jail not more than one year, or both fined and imprisoned; or is guilty of a misdemeanor, if the amount of tax not paid over is less than one thousand dollars, and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than five thousand dollars or imprisoned in the county jail not more than six months, or both fined and imprisoned. Each failure to account for and pay over tax for any tax period under this section is a separate offense and punishable accordingly: Provided, That thirty days prior to instituting a criminal proceeding under this section, the tax commissioner shall give the person written notice of the failure to truthfully account for and pay over tax. Such notice Notice shall be served on the person by certified mail or personal service.
§11-9-6. Failure to collect or withhold tax.


Any person required by any provision of this chapter or article thirteen-c, chapter eight of this code to collect or withhold any tax, who willfully fails to collect or withhold such the tax in the manner required by law, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned in the county jail not more than six months, or both fined and imprisoned. Each month or fraction thereof during which such the failure continues is a separate offense under this section and punishable accordingly.
§11-9-8. Willful failure to maintain records or supply information; misuse of exemption certificate.


If any person: (1) Willfully fails to maintain any records, or supply any information, in the manner required by this chapter or article thirteen-c, chapter eight of this code or regulations therefor promulgated in accordance with law, to compute, assess, withhold or collect any tax imposed by this chapter; or (2) presents to any vendor a certificate for the purpose of obtaining an exemption from the tax imposed by article fifteen or fifteen-a of this chapter or article thirteen-c, chapter eight of this code and then knowingly uses the item or service purchased in a manner that is not exempt from such the tax without remitting such the tax in the manner required by law, such that person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned in the county jail not more than six months, or both fined and imprisoned.
§11-9-10. Attempt to evade tax.


If any person: (1) Knowingly files a false or fraudulent return, report or other document under any provision of this chapter or article thirteen-c, chapter eight of this code; or (2) willfully delivers or discloses to the tax commissioner any list, return, account, statement, record or other document known by him or her to be fraudulent or false as to any material matter with the intent of obtaining or assisting another person in obtaining any credit, refund, deduction, exemption or reduction in tax not otherwise permitted by this chapter or article thirteen-c, chapter eight of this code; or (3) willfully attempts in any other manner to evade any tax imposed by this chapter or article thirteen-c, chapter eight of this code or the payment thereof, is guilty of a felony and, notwithstanding any other provision of the code, upon conviction thereof, shall be fined not less than one thousand dollars nor more than ten thousand dollars or imprisoned in the penitentiary a correctional facility not less than one nor more than three years or, in the discretion of the court, be confined in the county jail not more than one year, or both fined and imprisoned.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-3. Application of this article.

(a) The provisions of this article apply to inheritance and transfer taxes, estate tax and interstate compromise and arbitration of inheritance and death taxes, business registration tax, annual tax on incomes of certain carriers, minimum severance tax on coal, corporate license tax, business and occupation tax, severance tax, telecommunications tax, interstate fuel tax, consumers sales and service tax, use tax, tobacco products excise tax, soft drinks tax, personal income tax, business franchise tax, corporation net income tax, gasoline and special fuel excise tax, motor fuels excise tax, motor carrier road tax, health care provider tax and tax relief for elderly homeowners and renters administered by the state tax commissioner. This article shall not apply to ad valorem taxes on real and personal property or any other tax not listed in this section, except that in the case of ad valorem taxes on real and personal property, when any return, claim, statement or other document is required to be filed, or any payment is required to be made within a prescribed period or before a prescribed date, and the applicable law requires delivery to the office of the sheriff of a county of this state, the methods prescribed in section five-f of this article for timely filing and payment to the tax commissioner or state tax department are the same methods utilized for timely filing and payment with the sheriff.

(b) The provisions of this article apply to beer barrel tax levied by article sixteen of this chapter and to wine liter tax levied by section four, article eight, chapter sixty of this code.

(c) The provisions of this article also apply to any other article of this chapter when the application is expressly provided for by the Legislature.

(d) The provisions of this article apply to municipal sales and use taxes imposed under article thirteen-c, chapter eight of this code and collected by the tax commissioner."

The bill was then ordered to third reading.


Unfinished Business


S. C. R. 47, Requesting Joint Committee on Government and Finance study governmental agencies involved in resolving problem of flooding of streams; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

S. C. R. 65, Requesting Joint Committee on Government and Finance study commercial property and casualty insurance; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

S. C. R. 78, Requesting Joint Committee on Government and Finance study Wage Payment and Collection Act; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

H. C. R. 89, Requesting a study to identify appropriate sources of revenue to pay for future costs of cleanup; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.


Committee Reports


Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 566, Establishing Unborn Victims of Violence Act,

And,
S. B. 573, Providing procedure for economic development authority to address problems of state minorities,

And reports the same back, with amendment, with the recommendation that they each do pass, as amended.

At the respective requests of Delegate Staton, and by unanimous consent, S. B. 573 was taken up for immediate consideration, read a second time and then ordered to third reading with a Committee amendment pending and with the further right to amend on that reading.

At the request of Delegate Staton, and by unanimous consent, Com. Sub. for S. B. 566 was taken up for immediate consideration and reported by the Clerk.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page two, after the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-30. Recognizing a fetus as a distinct victim of certain crimes of violence against the person.


(a) This section may be known and cited as the 'Unborn Victims of Violence Act'.

(b) For the purposes of this article, the following definitions shall apply: Provided: That these definitions only apply for purposes of prosecution of unlawful acts under this section and may not otherwise be used to create or to imply that a civil cause of action exists or used for purposes of argument in a civil cause of action, unless there has been a criminal conviction under this section.

(1) 'Embryo' means the developing human in its early stages. The embryonic period commences at fertilization and continues to the end of the embryonic period and the beginning of the fetal period, which occurs eight weeks after fertilization, or ten weeks after the onset of the last menstrual period.

(2) 'Fetus' means a developing human that has ended the embryonic period and thereafter continues to develop and mature until termination of the pregnancy or birth.

(3) 'Unborn victim' means an embryo or fetus that is a member of the species homo sapiens while carried in the womb.

(c) For purposes of enforcing the provisions of sections one, four and seven of this article, subsections (a) and (c), section nine of said article, sections ten and ten-b of said article and subsection (a), section twenty-eight of said article, a pregnant woman and the embryo or fetus she is carrying constitute separate and distinct victims.

(d) Exceptions. -- The provisions of this section do not apply to:

(1) Acts committed during a legal abortion to which the pregnant woman, or a person authorized by law to act on her behalf, consented or for which the consent is implied by law;

(2) Acts or omissions by medical personnel during or as a result of medical or health-related treatment or services, including, but not limited to, medical care, abortion, diagnostic testing, or fertility treatment;
(3) Acts or omissions by medical personnel in performing lawful procedures involving embryos that are not in a stage of gestation in utero;

(4) Acts involving the use of force in lawful defense of self or another; and

(5) Acts or omissions of a pregnant woman with respect to the embryo or fetus she is carrying.

(e) For purposes of the enforcement of the provisions of this section, a violation of the provisions of article twenty-one, chapter sixteen of this code shall not serve as a waiver of the protection afforded by the provisions of subdivision (1), subsection (d) of this section.

(f) Other convictions not barred. -- A prosecution for or conviction under this section is not a bar to conviction of or punishment for any other crime committed by the defendant arising from the same incident."

On motion of Delegate Kominar, the Committee amendment was amended on page two, line nineteen, after the word "another", by inserting the following: "but not an embryo or fetus".

Delegate Hatfield moved to amend the Committee amendment on page two, section thirty, subsection (d), subdivision (2), line eleven, following the word "medical" by inserting the words "and nursing".

On the adoption of the amendment to the amendment, Delegate Hatfield demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 589), and there were--yeas 20, nays 77, absent and not voting 3, with the yeas and absent and not voting being as follows:

Yeas: Brown, Campbell, Caputo, Doyle, Fleischauer, Foster, Hartman, Hatfield, Hrutkay, Leach, Manchin, Manuel, Martin, Morgan, Palumbo, Poling, Spencer, Staton, Talbott and Webster.

Absent And Not Voting: Amores, Coleman and Ferrell.

So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.

Delegates Manuel, Doyle, Hatfield, and Foster moved to amend the amendment, on page two, after the enacting clause, by striking out everything after the enacting clause and inserting in lieu thereof of the following:

"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §61-2A-1; §61-2A- 2; §61-2A- 3; §61-2A-4; §61-2A-5; and §61-2A-6, all to read as follows:
ARTICLE 2A. CRIMES AGAINST A PREGNANT FEMALE OR HER EMBRYO OR FETUS.

§61-2A-1. Legislative findings.

The Legislature finds as follows:
(1) That the Legislature of the state of West Virginia has a duty to maintain and to protect the life and health of a pregnant female and to ensure the optimal well-being of the potential life and health of her embryo or fetus in utero, at defined stages of gestation, from the consequences of the acts or omissions of a third party that may cause death or injury to her, deprive her embryo or fetus of its potential for life or health, or cause physical injury to her embryo or fetus;
(2) That when a pregnant female's privacy interests are not at issue, then her right of privacy does not conflict with the right and duty of the state of West Virginia to determine whether, and at what time during gestation, it should protect a pregnant female and the potential life and health of her embryo or fetus in utero; and
(3) That in enacting this legislation, by determining that an embryo or fetus in utero has a potential for life and that an embryo or fetus should not be lost or injured as a result of the unlawful acts of a third party without criminal liability and punishment attaching, the Legislature as a body does not intend to make a statement as to any moral, religious, scientific or other belief that may be held by an individual or a group of individuals regarding the question of when a human life begins.
61-2A-2. Definitions.
(1) 'Embryo' means the developing human in its early stages. The embryonic period commences at the beginning of the third week after ovulation/fertilization, which coincides in time with the expected day that the next menstruation would have started. The end of the embryonic period and the beginning of the fetal period occurs eight weeks after fertilization, or ten weeks after the onset of the last menstrual period.
(1) 'Gestation' means the period of time during which a pregnant female carries an embryo or fetus in her uterus during pregnancy.
(2) 'In utero' means in the uterus, during gestation.
(3) 'Non-viable fetus' means a fetus that has ended the embryonic period and begun the fetal period. The fetal period of a non-viable fetus begins eight weeks after fertilization, and exists until the fetus becomes a viable fetus.
(4) 'Pregnant female' means a female who is in gestation.
(5) 'Viable fetus' means a fetus that has developed and matured so as to be capable of successfully surviving the trauma of birth. The time of development and maturity of the fetus may vary if the fetus was with or without proper prenatal care, or if a potentially viable fetus had the aid of medical support and facilities. A fetus with the aid of proper medical support and facilities may be viable between the twentieth and twenty-fourth weeks of gestation or when it has developed an estimated fetal weight of at least 500 grams, as determined by an accepted medical procedure, including, but not limited to, ultrasonic imaging and examination.
§61-2A-3. Exceptions to application of article.
(a) The provisions of this article do not apply to:
(1) Acts that cause the loss of an embryo or fetus if those acts were performed during an abortion to which the pregnant female, or a person authorized by law to act on her behalf, consented or for which the consent was implied by law;
(2) Acts or omissions by medical personnel during or as a result of the delivery of medical or health-related treatment or services, including, but not limited to, medical care, midwifery, abortion, diagnostic testing, or fertility treatment;
(3) Acts or omissions by medical personnel in performing lawful procedures involving embryos that are not in a stage of gestation in utero;
(4) Acts involving the use of force in lawful defense of self or another, but not a fetus; or
(5) Acts or omissions of a pregnant female with respect to the fetus she is carrying.
(b) For purposes of the enforcement of the provisions of this section, a violation of the provisions of the women's right to know act, article two-i, chapter sixteen of this code, shall not serve as a waiver of the protection afforded by the provisions of subdivision (1), subsection (a) of this section.
§61-2A-4. Enhanced penalties for violent acts against a pregnant female carrying embryo or non-viable fetus.

(a) For purposes of enforcing the provisions of sections one, four and seven of this article, subsections (a) and (c), section nine of this article, sections ten and ten-b of this article and subsection (a), section twenty-eight of this article, if the victim of criminal conduct is a pregnant female carrying an embryo or non-viable fetus at the time the alleged act was committed, and the act also causes the death or injury of the pregnant female or causes the loss of, or injury to, her non- viable fetus then, upon conviction thereof, the offender is subject to enhanced penalties as provided by this section.
(b) If the offender is convicted of murder, as defined in section one of this article, then in addition to the penalties provided by sections two and three of this article, the court may impose an additional sentence of imprisonment of not more than ten years.
(c) If the offender is convicted of voluntary manslaughter under section four of this article, then in addition to the penalty provided for by section four, the court may impose an additional sentence of imprisonment of not more than five years.
(d) If the offender is convicted of attempting to kill or injure by poison under section seven of this article, then in addition to the penalty provided for by section seven, the court may impose an additional sentence of imprisonment of not more than five years.
(e) If the offender is convicted of malicious assault under subsection (a), section nine of this article, then in addition to the penalty provided for by subsection (a), section nine, the court may impose an additional sentence of imprisonment of not more than three years.
(f) If the offender is convicted of battery under subsection (c), section nine of this article, then in addition to the penalty provided for by subsection (c), section nine, the court may impose an additional sentence of confinement of not more than six months in a county or regional jail.
(h) If the offender is convicted of assault under section ten of this article, then in addition to the penalty provided for by section ten, the court may impose an additional sentence of imprisonment of not more than two years in a state correctional facility or confinement of not more than six months in a county or regional jail.
(i) If the offender is convicted of malicious assault under subsection (a), section ten-b of this article, then in addition to the penalty provided for by subsection (a), section ten-b, the court may impose an additional sentence of imprisonment of not more than five years.
(j) If the offender is convicted of unlawful assault under subsection (b), section ten-b of this article, then in addition to the penalty provided for by subsection (b), section ten-b, the court may impose an additional sentence of imprisonment of not more than two years.
(k) If the offender is convicted of battery under subsection (c), section ten-b of this article, then in addition to the penalty provided for by subsection (c), section ten-b, the court may impose an additional sentence of confinement of not more than six months in a county or regional jail.
(l) If the offender is convicted of domestic battery under subsection (a), section twenty-eight of this article, then in addition to the penalty provided for by subsection (a), section twenty-eight, the court may impose an additional sentence of confinement of not more than six months in a county or regional jail.
§61-2A-5. Recognizing a viable fetus as a distinct victim of certain crimes of violence against the person.

(a) For purposes of enforcing the provisions of sections one, four and seven, subsections (a) and (c), section nine of said article, sections ten and ten-b of said article and subsection (a), section twenty-eight of said article, a pregnant female and the viable fetus she is carrying each constitute separate and distinct victims.
(b) As to each victim, in addition to the elements of the underlying offense, the state must prove, beyond a reasonable doubt, that the alleged offender:
(1) Either (A) intended to cause death or injury to the pregnant female or to cause the loss of, or injury to, her viable fetus, or (B) knew that such acts would cause death or injury to the pregnant female or would cause the loss of, or injury to, her viable fetus; or
(2) Knew that the acts created a strong probability of death or injury to the pregnant female or the loss of, or injury to, her viable fetus; and
(3) Knew that the female was pregnant.
§61-2A-6. Other convictions not barred.
A prosecution for or conviction under this article is not a bar to conviction of or punishment for any other crime committed by the defendant arising from the same incident."
On the adoption of the amendment to the amendment, the yeas and nays were demanded, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 590), and there were--yeas 27, nays 70, absent and not voting 3, with the yeas and absent and not voting being as follows:
Yeas: Amores, Brown, Campbell, Caputo, Doyle, Fleischauer, Foster, Hartman, Hatfield, Hrutkay, Leach, Long, Mahan, Manchin, Manuel, Martin, Mezzatesta, Morgan, Palumbo, Perdue, Poling, Proudfoot, Spencer, Staton, Tabb, Talbott and Webster.
Absent And Not Voting: Coleman, Ferrell and Shelton.
So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
The question now before the House being on the adoption of the Committee amendment, as amended, the same was put and prevailed.
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 591), and there were--yeas 79, nays 18, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Amores, Brown, Campbell, Caputo, Doyle, Fleischauer, Foster, Hartman, Hatfield, Leach, Manuel, Mezzatesta, Morgan, Palumbo, Proudfoot, Spencer, Talbott and Webster.
Absent And Not Voting: Coleman, Ferrell and Shelton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 566) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 566 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-2-30, relating to creating the 'Unborn Victims of Violence Act'; defining certain terms; identifying offenses of violence against a person that are committed against a pregnant woman or her embryo or fetus; establishing that an embryo or fetus is a separate victim in the case of certain violent crimes against a pregnant woman or her embryo or fetus; providing exceptions against the application of this section to certain persons or entities; specifying penalties; and providing that a conviction under this section, or of this article, is not a bar to prosecution of, or punishment for, any other crime allegedly committed by the defendant arising from the same incident."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 317, Increasing parolee supervision fee,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the bill (S. B. 317) to the Committee on Finance was abrogated, and it was taken up for immediate consideration, read a second time, ordered to third reading and the rule was suspended to permit the offering and consideration of amendments on that reading and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 28, Exempting certain personal property from levy, forced sale, attachment or execution,
And,
S. B. 428, Defining transacting insurance,
And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (Com. Sub. for S. B. 28 and S. B. 428) were taken up for immediate consideration, read a second time and then ordered to third reading with a Committee amendment pending and the further right to amend on that reading.
Chairman Michael, from the Committee on Finance, submitted the following report, which was received.
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 408, Relating generally to levies by county boards of education and expenditure of property taxes collected,
And reports the same back, with amendment, with the recommendation that it do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for S. B. 408) was taken up for immediate consideration, read a second time and then ordered to third reading with a Committee amendment pending and the further right to amend on that reading.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 569, Clarifying and preserving irrevocability of certain trusts.
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 569) was taken up for immediate consideration, read a second time, ordered to third reading and the rule was suspended to permit the offering and consideration of amendments on that reading, and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 402, Relating to authority of board of risk and insurance management to promulgate certain legislative rules,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 402) was taken up for immediate consideration, read a second time and then ordered to third reading and the rule was suspended to permit the offering and consideration of amendments on that reading.
Chairman Spencer, 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 12th day of March, 2004, 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. 199), Relating to appointments to commission for deaf and hard-of-hearing,
(S. B. 296), Continuing center for professional development board,
And,
(S. B. 471), Continuing state board of risk and insurance management.


Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2200, Creating the felony offense of destruction of property.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-30. Removal, injury to or destruction of property, monuments designating land boundaries and of certain no trespassing signs; penalties.

(a) If any person unlawfully, but not feloniously, take and carry away, or destroy, injure or deface takes and carries away, or destroys, injures or defaces any property, real or personal, not his own of another, he shall be or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars, or imprisoned confined in the county or regional jail not more than one year, or both fined and imprisoned.
(b) Any person who unlawfully, willfully and intentionally destroys, injures or defaces the real or personal property of one or more other persons or entities during the same transaction or course of conduct causing a loss in the value of the property in an amount of two thousand five hundred dollars or more, is guilty of the felony offense of destruction of property and, upon conviction thereof, shall be fined not more than two thousand five hundred dollars or imprisoned in the state correctional facility for not less than one year nor more than ten years, or in the discretion of the court, confined in the county or regional jail not more than one year, or both fined and imprisoned.
(c) If any person shall break down, destroy, injure, deface or remove breaks down, destroys, injures, defaces or removes any monument erected for the purpose of designating the boundaries of a municipality, tract or lot of land, or any tree marked for that purpose, or any sign or notice upon private property designating no trespassing upon such the property, except signs or notices posted in accordance with the provisions and purposes of sections seven, eight and ten, article two, chapter twenty of this code, he shall be or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than two hundred dollars, or imprisoned confined in the county or regional jail not less than one nor more than six months, or both fined and imprisoned. Justices of the peace and magistrates shall Magistrates have concurrent jurisdiction of all offenses arising under the provisions of this section. The provisions of this paragraph shall do not apply to the owner, or his or her agent, of the lands on which such signs or notices are posted.'
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendment and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect July 1, 2004, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4043, Establishing the priority for early childhood education in the basic skills of reading, mathematics and English language arts.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §2-1-3 and §18-2E-3f, to read as follows:


CHAPTER 2. COMMON LAW, STATUTES, LEGAL HOLIDAYS,

DEFINITIONS AND LEGAL CAPACITY.

ARTICLE 1. COMMON LAW.
§2-1-3. English designated as official state language; instruction in English language.

English is hereby designated as the official language of the state of West Virginia. Except as provided by law, no state agency or political subdivision shall be required to provide, and no state agency or political subdivision shall be prohibited from providing, any documents, information, literature or other written materials in any language other than English. The basic skills of the English language shall be taught in the schools of this state.


CHAPTER 18. EDUCATION.

ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-3f. Building the basics early childhood curriculum; legislative findings; state board rule.


(a) Legislative findings. -- The Legislature makes the following findings:

(1) Children entering early childhood education programs have significant differences in their cognitive development, mastery of the early basic skills and readiness for instruction in a formal setting;

(2) Mastery of the basic skills of reading, mathematics and English language arts is the foundation for all further learning and, therefore, providing the instruction necessary for each child to attain mastery in these basic skills must be the priority for early childhood education programs;

(3) Deficiencies in the basic skills of reading, mathematics and English language arts that persist in children beyond the early childhood years become more difficult to overcome as they retard further progress in building the basics and lead to significant gaps in the basic knowledge needed to comprehend more advanced content in other subject areas; and

(4) Intensive instruction, early detection and intervention to correct student deficiencies in the basic skills of reading, mathematics and English language arts during early childhood education are more effective strategies for improving student performance than the alternatives such as grade level retention, social promotion and referral for special services and can lessen the prevalence of low basic skills as a contributing factor in student truancy, delinquency and dropout rates.

(b) Intent and purpose. -- The intent and purpose of this section are to establish that the priorities for early childhood education are to:

(1) Provide intensive instruction in the basic skills of reading, mathematics, and English language arts;

(2) Provide early detection and intervention strategies to correct student deficiencies; and

(3) Address the findings set forth in subsection (a) of this section.

(c) State board rule. -- On or before the first day of July, two thousand four, the state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code to effectuate the intent and purpose of this section, including, but not limited to, provisions that address the following:

(1) Reading, mathematics and English language arts are the only subjects that are required to be taught daily in kindergarten through grade two early childhood education programs;

(2) Instruction in other subject matter in kindergarten through grade two shall be oriented to reinforce instruction in reading, mathematics and English language arts;

(3) Strategies for the early detection and intervention to correct student deficiencies in reading, mathematics and English language arts shall be employed throughout the instructional term in each of the early childhood grades to help students achieve mastery in these subjects, including allowing flexibility in student schedules to provide additional time and instruction for students who are below mastery in these subjects in grades three and four;

(4) Accountability for student performance on the statewide assessment of student performance in the early childhood grades shall only include the basic skills of reading, mathematics and English language arts; and

(5) Any other provisions considered necessary by the state board to achieve the intent and purpose of this section."

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4043 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §2-1-3 and §18-2E-3f, relating to designating English as the official language of the state; establishing the priority for early childhood education in the basic skills of reading, mathematics and English language arts; making certain findings; stating intent and purpose; limiting scope of statewide assessments in early childhood; and requiring state board rule."

On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4566, Allowing continued employment of a spouse of a newly elected county commissioner with tenured service with a county agency to keep their job.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page three, section fifteen, line nineteen, by striking out the words "for at least five years".

On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendment and requested the Senate to recede therefrom.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

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. 97 - "Extending the committee of conference relating to consideration of Eng. Com. Sub. for House Bill No. 4377 , Assessing a penalty on those physicians who fail to pay the special assessment."

Resolved by the Legislature of West Virginia:

That pursuant to Rule No. 3 of the Joint Rules of the Senate and House of Delegates, under the provisions of Joint Rule No. 24, the committee of conference is hereby extended until the hour of 6:00 P.M., March 13, 2004, for the express purpose of consideration of matters of disagreement between the two houses, as to Engrossed Committee Substitute for House Bill No. 4377; and, be it

Further Resolved, That the provisions of Joint Rule No. 3 are hereby suspended for the aforementioned purpose.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (S. C. R. 97) to a committee was dispensed with, and it was taken up for immediate consideration.

The question now being on the adoption of the resolution, the yeas and nays were taken (Roll No. 592), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Ferrell and Shelton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (S. C. R. 97) adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

At 9:44 p.m., on motion of Delegate Staton, the House of Delegates recessed for ten minutes, and reconvened at that time.

Com. Sub. for S. B. 197, Relating generally to distribution of net terminal income of racetrack video lottery terminals; on second reading, having been postponed until this time, was reported by the Clerk.

When consideration of the bill and amendments was passed over in earlier proceedings, the question before the House was a point of order raised against the germaneness of the amendment offered by Delegates Hamilton and Ellem to the Committee amendment.

The question before the House being the point of order, the Speaker stated that he had conferred with the Clerk and was ready to rule thereon, and ruled the amendment germane to the Committee amendment.

Subsequently,

Delegate Hamilton then asked and obtained consent of the House that the amendment he and Delegate Ellem offered to the Committee amendment be withdrawn.

The question now before the House being the adoption of the Committee amendment to Com. Sub. for S. B. 197, the same was put and prevailed.

The bill was then ordered to third reading.

Com. Sub. for S. B. 518, Relating to policemen and firemen required to work during holidays; compensation; on second reading, having been previously read a second time and postponed until this time, was reported by the Clerk.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted.

The bill was then ordered to third reading.

Note from the Clerk of the House of Delegates: Although the amendment mentioned above was adopted, at the time of preparation of this Journal, it was not available in electronic form for publication and has, therefore, been omitted. When the amendment is properly filed and available, it will be published in a subsequent Journal with an explanatory note from the Clerk of the House.


Miscellaneous Business


Delegate Faircloth asked and obtained unanimous consent that his remarks regarding his amendment to the Budget Bill be printed in the Appendix to the Journal.

Delegate Azinger asked and obtained unanimous consent that the remarks of Delegate Webb regarding Com. Sub. for S. B. 566 be printed in the Appendix to the Journal.

Delegate Manchin asked and obtained unanimous consent that the remarks of Delegate Caputo regarding Delegate Manuel's amendment to Com. Sub. for S. B. 566 be printed in the Appendix to the Journal.

Delegate Cann asked and obtained unanimous consent that the remarks of Delegates Ennis and Kominar regarding Com. Sub. for S. B. 566 be printed in the Appendix to the Journal.

Delegate Trump asked and obtained unanimous consent that the remarks of Delegate Armstead regarding Com. Sub. for S. B. 566 be printed in the Appendix to the Journal.

Delegate Staton asked and obtained unanimous consent that the remarks of Delegates Webster, Talbott, Pino and Amores regarding Com. Sub. for S. B. 566 be printed in the Appendix to the Journal.

Delegate Perdue asked and obtained unanimous consent that the remarks of Delegate DeLong regarding Com. Sub. for S. B. 197 be printed in the Appendix to the Journal.

At 10:13 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 10:00 a.m., Saturday, March 13, 2004.