__________*__________

Wednesday, March 3, 2004



The House of Delegates met at 10:00 a.m., and was called to order by the Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Tuesday, March 2, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates proceeded to the Ninth Order of Business for the purpose of considering a resolution on Unfinished Business.


Unfinished Business

H. C. R. 67, Designating March 3rd, 2004 as "Disability Awareness Day"; on unfinished business, coming up in regular order, was read 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.


Committee Reports


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

Your Committee on the Judiciary has had under consideration:
H. B. 4489, Imposing a lien and recovery for unpaid child support on the proceeds due a child support debtor from a settlement, judgment or award,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:

Com. Sub. for H. B. 4489 - "A Bill to amend and reenact §48-1-230 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §48-18-119a and §48-18-119b, all relating to child support generally; providing for liens upon child support obligors' proceeds from worker's compensation awards, from civil settlements, judgments, or awards from arbitration or other alternative dispute resolutions,"
H. B. 4653, Opening the upper area New River for float trips and bateau style boats following an economic study of the area and a study of new licensing regulations,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:

Com. Sub. for H. B. 4653 - "A Bill to amend and reenact §20-2-23a of the code of West Virginia, 1931, as amended, and to amend said code by adding thereto a new section, designated §20-2-23g, all relating to conducting a study of the upper area New River; opening the area to permit for float trips and bateau style boats; and economic development,"

And,
H. B. 4686, Making a technical correction to language dealing with fires being built on public and private roads,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:

Com. Sub. for H. B. 4686 - "A Bill to amend and reenact §20-3-6 of the code of West Virginia, 1931, as amended, relating to building fires on public roads,"

With the recommendation that the committee substitutes each do pass.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bills (Com. Sub. for H. B. 4489, Com. Sub. for H. B. 4653 and Com. Sub. for H. B. 4686) will be placed on 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:
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,

And reports back a committee substitute therefor, with the same title, as follows:

Com. Sub. for H. B. 4566 - "A Bill to amend and reenact §61-10-15 of the code of West Virginia, 1931, as amended, relating to allowing continued employment of a spouse of a newly elected county commissioner with tenured service with a county agency to keep their job,"

With the recommendation that the committee substitute do pass.

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

Your Committee on the Judiciary has had under consideration:
H. B. 4718, Establishing a three-year pilot project in Berkeley County creating a volunteer litter reporting program,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:

Com. Sub. for H. B. 4718 - "A Bill to amend and reenact §20-7-25 of the code of West Virginia, 1931, as amended, relating to establishing a three-year pilot project creating a volunteer litter reporting program,"

With the recommendation that the committee substitute do pass, and with the recommendation that the second reference of the bill to the Committee on Finance be dispensed with.

In the absence of objection, reference of the bill (Com. Sub. for H. B. 4718) to the Committee on Finance was abrogated.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for H. B. 4718) will be placed on 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:
H. B. 4534, Providing a procedure to permit owners of mobile homes to obtain cancellation of certificates of title when the mobile home is permanently attached to the owner's real estate

And reports back a committee substitute therefor, by unanimous vote of the Committee, with the same title, as follows:

Com. Sub. for H. B. 4534 - "A Bill to amend and reenact §11-5-12 of the code of West Virginia, 1931, as amended; to amend and reenact §17A-3-4 of said code; and to amend said code by adding thereto a new section, designated §17A-3-12b, all relating to providing a procedure to permit owners of mobile homes to obtain cancellation of certificates of title when the mobile home is permanently attached to the owner's real estate; permitting the filing of canceled certificates of title in the office of the clerk of the county commission; and providing that mobile homes permanently attached to real estate of the owner may not be classified as personal property if its certificate of title has been canceled,"

With the recommendation that the committee substitute do pass, and with the recommendation that the second reference of the bill to the Committee on Finance be dispensed with.

In the absence of objection, reference of the bill (Com. Sub. for H. B. 4534) to the Committee on Finance was abrogated.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for H. B. 4534) will be placed on the Consent Calendar.


Messages from the Executive


Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor, advising that on March 2, 2004, he approved S. B. 449.

Mr. Speaker, Mr. Kiss, laid before the House the following communication from His Excellency, the Governor, submitting the following annual probation and parole report; which was filed in the Clerk's Office.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston 25305

Executive Message No. 2
2004 Regular Session
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305

Dear Mr. Speaker:

As empowered by Section 11, Article 7 of the Constitution of the State of West Virginia, and Section 16, Article 1, Chapter 5 of the Code of West Virginia, I extended relief to the persons named on the attached report. I submit this report in accordance with the above-cited provisions for the period March 2, 2003 to March 1, 2004.

Very truly yours,

Bob Wise,

Governor

PARDONS AND MEDICAL RESPITES GRANTED

BY GOVERNOR BOB WISE

FOR THE PERIOD

MARCH 2, 2003 TO MARCH 1, 2004


Grimmett, William Ronald

Decided April 28, 2003



In 1962, Mr. Grimmett entered a plea of guilty to one felony count of grand larceny. On August 17, 1962, the Greenbrier County Circuit Court sentenced him to one to ten years of imprisonment. Mr. Grimmett was granted parole in 1963 and successfully completed his parole period. Since that time, Mr. Grimmett has maintained himself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional, and complete pardon to William Ronald Grimmett for the offense of grant larceny.

Buck, Carl Terry

Decided June 24, 2003



In 1977, Mr. Buck entered a plea of guilty to one felony count of grand larceny. On December 16, 1977, the Kanawha County Circuit Court sentenced him to a three-year term of probation. Mr. Buck was granted an early release from probation on June 28, 1979 for good conduct. Since that time, Mr. Buck has maintained himself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to Carl Terry Buck for the offense of grand larceny.



Higginbotham, Harry Foster

Decided August 7, 2003



In 1983, Mr. Higginbotham pled guilty to one felony count of fourth degree arson and was sentenced by the Kanawha County Circuit Court to a two-year term of probation. Mr. Higginbotham was granted an early release from probation on October 31, 1984 for good conduct. Since that time, Mr. Higginbotham has maintained himself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to Harry Foster Higginbotham for the offense of fourth degree arson.

Hoak, William Raymond

Decided August 7, 2003



In 1964, Mr. Hoak pled guilty to one felony count of breaking and entering. On February 17, 1964, the Jefferson County Circuit Court sentenced him to one to ten years of imprisonment, which sentence was suspended to a three-year term of probation. Mr. Hoak successfully completed his probationary period. Since that time, Mr. Hoak has maintained himself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to William Raymond Hoak for the offense of breaking and entering.



Sadler, Edward Arnold, Jr.

Decided August 7, 2003



In 1998, Mr. Sadler pled guilty to one misdemeanor count of shoplifting. On December 21, 1998, he was fined and ordered to pay restitution by the Municipal Court of Nitro in Kanawha County. Mr. Sadler fulfilled the requirements of the court. Since that time, Mr. Sadler has maintained himself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to Edward Arnold Sadler, Jr. for the offense of shoplifting.

Gwinn, Thomas Stanton, Jr.

Decided October 1, 2003



In 1989, Mr. Gwinn was found guilty of unlawful wounding. On April 20, 1989, the Fayette County Circuit Court sentenced him to one to ten years of imprisonment, which was suspended to three years of probation. Mr. Gwinn successfully fulfilled all probation obligations and completed his probation period without incident. Since that time, Mr. Gwinn has maintained himself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to Thomas Stanton Gwinn, Jr. for the offense of unlawful wounding.



Flower, Matthew David

Decided December 15, 2003


In 1999, Mr. Flower pled guilty to a misdemeanor charge of first offense driving under the influence. On January 28, 1999, he was sentenced by the Municipal Court in Morgantown, Monongalia County to a twenty-four hour jail term and was assessed fines and costs. Mr. Flower successfully fulfilled the terms of his sentence. Since that time, Mr. Flower has maintained himself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to Matthew David Flower for the offense of first offense driving under the influence.



Hess, Victoria Elizabeth

Decided December 15, 2003


In 1998, Ms. Hess pled guilty to the misdemeanor charges of first offense driving under the influence and obstructing. On February 25, 1998, she was sentenced by the Magistrate Court of Berkeley County to a thirty-day jail term, one year of unsupervised probation, community service, and assessed fines and costs. Ms. Hess successfully fulfilled the terms of her sentence. Since that time, Ms. Hess has maintained herself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to Victoria Elizabeth Hess of the offenses of first offense driving under the influence and obstructing.




Barrett, John Michael

Decided December 18, 2003



In 1968, Mr. Barrett pled guilty to one felony count of grand larceny. On February 19, 1968, he was sentenced by the Wood County Circuit Court to a term at the State Forestry camp and five years of probation. Mr. Barrett was released from the State Forestry Camp on December 30, 1968, and was granted early release from probation on January 26, 1972, successfully fulfilling the terms of his sentence. Since that time, Mr. Barrett has maintained himself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to John Michael Barrett for the offense of grand larceny.



Miller, Tonyia K.

Decided February 3, 2004



In February of 1998, Ms. Miller pled guilty to one misdemeanor count of shoplifting. She was fined and ordered to pay court costs by the Municipal Court of the City of Charleston in Kanawha County. Ms. Miller fulfilled the requirements of the court. Since that time, Ms. Miller has maintained herself as a responsible, law-abiding citizen, leading a productive and contributing lifestyle.

For these reasons, Governor Wise granted a full, unconditional and complete pardon to Tonyia K. Miller for the offense of shoplifting.


Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

Com. Sub. for S. B. 549 - "A Bill to amend and reenact §17-24A-1 and §17-24A-2 of the code of West Virginia, 1931, as amended, all relating to abandoned motor vehicles; definitions; exceptions; and penalties"; which was referred to the Committee on the Judiciary.

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

S. B. 673 - "A Bill to amend and reenact §17C-17A-1, §17C-17A-3 and §17C-17A-6 of the code of West Virginia, 1931, as amended, all relating to reporting requirements on coal resource transportation roads; and removing the reporting requirement for vehicles hauling coal on roads that are not part of the coal resource transportation road system"; which was referred to the Committee on Finance.


Resolutions Introduced


Mr. Speaker, Mr. Kiss, and Delegates R. M. Thompson, Amores, Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border, Browning, Butcher, Calvert, Campbell, Canterbury, Caputo, Carmichael, Caruth, Crosier, DeLong, Doyle, Duke, Ellem, Evans, Ferrell, Fleischauer, Foster, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Iaquinta, Kominar, Kuhn, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Michael, Morgan, Overington, Palumbo, Paxton, Perdue, Perry, Pethtel, Poling, Renner, Romine, Schadler, Shaver, Shelton, Smirl, Sobonya, Spencer, Stalnaker, Staton, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, Trump, Tucker, Wakim, Walters, Warner, Webb, Webster, G. White, H. White, Williams, Wright, Yeager and Yost offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 68 - "Requesting the Joint Committee on Government and Finance to conduct a study of the transportation needs of the women, persons living below the poverty level, elderly, veterans and persons with disabilities and others living in West Virginia."

Whereas, According to The Status of Women in West Virginia developed by the Institute for Women's Policy Research, as of 2002, a majority of 58 percent of West Virginia's rural residents live in areas that are not served by any public transportation, while 23 percent have below average access to transportation service; and

Whereas, Women in West Virginia have the lowest levels of educational attainment in the country; and

Whereas, Women in West Virginia are much more likely to live in poverty than women nationally; and

Whereas, Women in West Virginia are among the most likely in the country to die of heart disease or lung cancer, to have diabetes, and to experience activity limitations due to their health status; and

Whereas, The conclusions and policy recommendations of the study done by the Institute for Women's Policy Research, it was determined that the delivery of social services to women, including access to appropriate transportation, was necessary to improve the quality of life for women in West Virginia; and

Whereas, The care of elderly relatives in West Virginia falls almost entirely on women, they must overcome the lack of transportation to health care facilities, nutrition sites, educational programs, and wellness centered activities in senior centers; and

Whereas, West Virginia's elderly population is increasing and now ranks as the oldest median population in the nation; and

Whereas, West Virginia is a very rural state with many of its women, elderly, veterans and persons with disabilities living in areas that are not served by mass transit; and

Whereas, Transportation is an integral part of a person's ability to maintain a healthy life style; and

Whereas, It is the policy of this State to encourage and promote the development of resources to ensure the effective care and treatment of persons who are dependent upon the services of others by reason of age, a physical or mental impairment; and

Whereas, In recognition that for many such persons, effective care and treatment can only be secured from proprietary, voluntary and governmental offerings, it is the policy of this State to ensure the protection of the rights and dignity of those using such services; and

Whereas, A guiding principle of administration of the laws of this State is that such persons shall be encouraged and assisted in securing necessary care, services and treatment; and

Whereas, It is the policy of this State to encourage and promote the coordination of all agencies, political subdivisions, proprietary and voluntary offerings; and

Whereas, A coordinated transportation system increases efficiency by: Clustering both passengers and transportation providers; utilizing fewer one-way trips; providing more needed services; and coordinating the various public and private resources; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to conduct a study of the State's transportation system as it relates to the health care maintenance of women, elderly residents, veterans and persons with disabilities and others in order to ensure the development of the resources and the protection of the rights and dignity of those persons; and, be it

Further Resolved, That the findings and recommendations resulting from the study shall be reported to the Legislature by the beginning of the regular session of the year 2005, together with drafts of any proposed legislation necessary to effectuate such recommendations; and, be it

Further Resolved, That the Joint Committee on Government and Finance shall receive from Legislature funding to meet expenses incurred by the undertaking of the study.

Delegates Amores, Brown, Webb, Webster, Perry, Walters and Pino offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 69 - "Requesting the Joint Committee on Government and Finance to study the development of the West Virginia Film Commission, the development of intellectual properties and other mechanisms to encourage the film industry to conduct business in West Virginia."

Whereas, a majority of the multi-billion dollar US Film Industry's business is conducted outside of Hollywood; and

Whereas, creating infrastructure for the film industry in West Virginia can have tremendous positive impact on the economy of West Virginia through job growth, advertising and tourism; and

Whereas, the leadership of this state has been supportive of an effort to secure this business for West Virginia; and

Whereas, the citizens of West Virginia can provide a reliable and talented workforce for the industry; and

Whereas, other states have been successful in this undertaking; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with the drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Delegate Kuhn offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 70 - "Requesting the Division of Highways to name the bridge that crosses the Big Coal River at the northern end of Whitesville, Boone County, on State Route 3 at milemarker 40.39 the 'Robert L. "Bob" Stine Memorial Bridge'."

Whereas, Robert L. "Bob" Stine was born in Wheeling, Ohio County. He attended public schools graduating from Tyler County High School and received a bachelor's degree in business administration from the former Morris Harvey College in Charleston; and

Whereas, Robert L. "Bob" Stine was a veteran of the U. S. Army and served in the Korean War. He was a member of the VFW Post 15050 and the American Legion Post 0075; and

Whereas, After his military service, Mr. Stine accepted a position with the West Virginia Public Service Commission, where he served as fiscal director for 34 years, retiring in 1993 as Manager of Administration; and

Whereas, Beginning in 1949, Robert L. "Bob" Stine became associated with the American Legion Mountaineer Boys State, serving as administrator from 1980 until the time of his death in 2002. His efforts helped ensure that over 17,000 young men were taught the principles of democracy, citizenship and leadership. He influenced the youth to be future leaders of the United States and of West Virginia, the home that he so richly loved; therefore, be it
Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Division of Highways to name the bridge crossing the Big Coal River at the northern end of Whitesville, Boone County, on State Route 3 at milemarker 40.39 the "Robert L. 'Bob' Stine Memorial Bridge" in tribute to his many years of gentle leadership; and, be it

Further Resolved, That the Division of Highways is requested to have made and placed on the bridge signs identifying it as the "Robert L. 'Bob' Stine Memorial Bridge;" and, be it

Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this Resolution to the Secretary of the Department of Transportation.

Delegates Pino and Perry offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 71 - "Requesting the Joint Committee on Government and Finance study current statistical trends in juvenile delinquency, the underlying causes for juvenile delinquency, the prospect for creating a statewide program to address the multifaceted problems associated with increasing juvenile delinquency and the further prospect for addressing juvenile delinquency with school- funded programs designed to keep juveniles occupied with constructive and self esteem building activities, while projecting the fiscal requirements necessary to implement these programs."

Whereas, Juvenile delinquency remains a serious and ever-increasingly costly blight on the State that annually takes a heavy toll in terms of property loss, state sources, physical harm to innocent victims and loss of human life; and

Whereas, Traditional approaches to the problem of juvenile delinquency have not proven to be wholly effective; and

Whereas, The number of juveniles being incarcerated in this State has increased substantially during the past decade while the cost of incarceration has dramatically increased as well; and

Whereas, Creative, eclectic and innovative approaches need to be devised and implemented to address the ever-increasing and problematic specter of juvenile delinquency, and these approaches must be applied locally, regionally and statewide, depending on their efficiency and successful application within various areas of a diverse state. While some approaches may render success solely in a localized fashion due to cultural, ethnic regional or other differences, still others may universally render success, thereby justifying a uniform and statewide application; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the current statistical trends in juvenile delinquency, the underlying causes for juvenile delinquency, the prospect for creating a statewide program to address the multifaceted problems associated with increasing juvenile delinquency and the further prospect of addressing juvenile delinquency with school funded programs designed to keep juveniles occupied with constructive and self esteem building activities, while projecting the fiscal requirements necessary to implement any recommended programs; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2006, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the Joint Committee on Government and Finance course the involvement in and consultation with the West Virginia Judicial Association, the West Virginia Prosecuting Attorney's Association, the West Virginia Sheriff's Association, the West Virginia Chief of Police Association and the West Virginia Probation Officer's Association in regard to said study; and, be it

Further Resolved, That, at the commencement of the study, the legal staff of the Joint Committee on Government and Finance provide one full committee with a mandatory, detailed briefing on all existing state juvenile justice laws, both statutory and case law, as well as a detailed briefing as to all existing alternatives available to judges in dealing with juvenile delinquency; and, be it

Further Resolved, That the expenses necessary to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Delegates Smirl and Caputo offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 72 - "Requesting the Joint Committee on Government and Finance to conduct a study to determine the ability and feasibility of the sheriff's department to supervise home incarceration of convicted offenders."

Whereas, Currently, the county commission with approval of the circuit court employs a person, subject to supervision of the sheriff, as a home incarceration supervisor to administer the program and supervise offenders; and

Whereas, Providing for the sheriff's department to employ a person as a home incarceration supervisor with consent of the county commission and the approval of the circuit court may have a closer nexus and be more beneficial by allowing the program to operate more efficiently, effectively and inexpensively; and

Whereas, The supervisory authority of the sheriff's department would include the proper monitoring and supervision of offenders on home incarceration, the establishment of policies related to the daily operation, the evaluation of the work performance of all home incarceration supervisors and all other authority for the proper and orderly administration of the program within the county; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to conduct a study to determine the ability and feasibility of the sheriff's department to supervise home incarceration of convicted offenders; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Mr. Speaker, Mr. Kiss, and Delegates Frich, Amores, Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border, Brown, Browning, Butcher, Calvert, Campbell, Cann, Canterbury, Caputo, Carmichael, Caruth, Craig, Crosier, DeLong, Doyle, Duke, Ellem, Evans, Faircloth, Ferrell, Fleischauer, Foster, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Iaquinta, Kominar, Kuhn, Leach, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Mezzatesta, Michael, Morgan, Overington, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino, Poling, Proudfoot, Renner, Romine, Schadler, Schoen, Shaver, Shelton, Smirl, Sobonya, Spencer, Stalnaker, Staton, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, R. Thompson, R. M. Thompson, Trump, Tucker, Varner, Wakim, Walters, Warner, Webb, Webster, G. White, H. White, Williams, Wright, Yeager and Yost offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. R. 18 - "Proclaiming February as National Children's Dental Health Month."

Whereas, There is growing evidence concerning the integral relationship between oral health and general health, including associations between chronic oral infections and diabetes, osteoporosis, heart and lung conditions, and certain adverse pregnancy outcomes; and

Whereas, Dental caries (tooth decay) is the single most common chronic childhood disease - five times more common than asthma and seven times more common than hay fever; and

Whereas, More than 51 million school hours are lost each year across the country due to dental related illness in children; and

Whereas, Poor children suffer twice as much dental caries as their more affluent peers and their disease is more likely to be untreated; and

Whereas, Oral health indicators in the State of West Virginia continue to lag behind the rest of the nation, particularly in the area of children's oral health; and

Whereas, Dental hygienists and dentists complete extensive formal education and clinical preparation, and are essential to the pursuit of preventative oral health care, as well as early detection of life threatening diseases; and

Whereas, Dental hygienists and dentists, working as members of the oral health care team, dedicate their time to providing oral health care services to a diverse group, including children, the economically disadvantaged, the elderly, and physically and mentally disabled; therefore, be it

Resolved by the House of Delegates:

That the House of Delegates hereby proclaims February as National Children's Dental Health Month; and, be it

Further Resolved, That the House of Delegates hereby urges all parents and children to become more familiar with and appreciative of the practice of dental hygiene and dentistry, and to recognize dental hygienists and dentists for the many valued services they provide; and, be it

Further Resolved, That the Clerk of the House of Delegates is directed to forward a copy of this resolution to Dr. Peter Ngan, Chairman, West Virginia School of Dentistry.

Delegates Webb, Amores, Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border, Brown, Browning, Butcher, Calvert, Campbell, Cann, Canterbury, Caputo, Carmichael, Caruth, Craig, Crosier, DeLong, Doyle, Duke, Ellem, Ennis, Evans, Faircloth, Ferrell, Fleischauer, Foster, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Iaquinta, Kominar, Kuhn, Leach, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Mezzatesta, Michael, Morgan, Overington, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino, Poling, Proudfoot, Romine, Schadler, Schoen, Shaver, Shelton, Smirl, Sobonya, Spencer, Stalnaker, Staton, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, R. Thompson, R. M. Thompson, Trump, Tucker, Varner, Wakim, Walters, Warner, Webb, Webster, G. White, Williams, Wright, Yeager and Yost offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. R. 19 - "Requesting that the West Virginia Legislature expand the use of audio and video technology to make government proceedings more accessible to the public."

Whereas, Over the past several years the House of Delegates have taken major measures transitioning from paper to computer technology; and

Whereas, The wireless computer system provides the House of Delegates the ability to access, in the Capitol building, legislation via the internet and constituents via electronic mail; and

Whereas, The House of Delegates currently has an internet site and means to expand to live video and audio streams; and

Whereas, The House of Delegates currently has an in-house audio system for the House floor sessions and committee meetings; and

Whereas, Eighteen of the fifty state legislatures already provide internet audio for floor sessions, ten states provide internet audio of committee meetings, twenty-four provide internet audio and video and twenty-eight provide audio and video for floor sessions via tv broadcast; and

Whereas, The Supreme Court of Appeals of West Virginia has successfully provided telephone access to court proceedings and currently provides live video streaming of court proceedings; and

Whereas, The division of highways has effectively implemented two informational am radio frequencies to be used by travelers; and

Whereas, Providing the public with easy access to the House of Delegates would increase participation in government proceedings; therefore, be it

Resolved by the House of Delegates:
That the House of Delegates is hereby requested to expand the use of audio and video technology via all practical mediums.


Consent Calendar

Third Reading


Delegate Webster asked unanimous consent that, pursuant to House Rule 70a, H. B. 4660 and H. B. 4661 be removed from the Consent Calendar and be placed upon the House Calendar, which consent was not given, Delegate Staton objecting.

Delegate Webster then so moved.

On this question, the yeas and nays were taken (Roll No. 285), and there were--yeas 55, nays 43, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Amores, Ashley, Azinger, Beach, Beane, Boggs, Browning, Campbell, Cann, Craig, Crosier, Doyle, Ennis, Frederick, Hartman, Houston, Kominar, Leach, Long, Mahan, Mezzatesta, Michael, Morgan, Perdue, Perry, Pethtel, Pino, Proudfoot, Renner, Shaver, Shelton, Stalnaker, Staton, Stemple, Swartzmiller, Tabb, R. M. Thompson, Varner, Warner, G. White, H. White, Williams and Mr. Speaker, Mr. Kiss.

Absent And Not Voting: Coleman and Yeager.

So, two thirds of the members present and voting not having voted in the affirmative, the motion did not prevailed.

At 11:12 a.m., on motion of Delegate Staton, the House of Delegates recessed for fifteen minutes and reconvened at that time.
Reordering of the Calendar


Delegate Staton announced that the Committee on Rules had transferred H. B. 4008, H. B. 4059, H. B. 4660, H. B. 4661 and H. B. 4669 from third reading, Consent Calendar to the House Calendar.

The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for S. B. 52, Allowing motorcycle registration plates to be fastened in vertical position,

S. B. 268, Continuing division of motor vehicles,
S. B. 269, Continuing division of purchasing within department of administration,

And,
S. B. 324, Continuing division of personnel.
H. B. 2692, Including boat retailers in the special method for appraising dealer vehicle inventory; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.

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

"That §11-6C-1 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 6C. SPECIAL METHOD FOR APPRAISING DEALER VEHICLE INVENTORY.

§11-6C-1. Inventory included within scope of article.
Notwithstanding any other provisions of law, inventory of vehicles, as that term is defined in section one, article one, chapter seventeen-b of this code, that is held for sale or lease by new or used vehicle dealers licensed under the provisions of article six, chapter seventeen-a of this code, provided that house trailers and factory-built homes shall be included within the scope of this article, consisting of individual units of personal new or used property, each unit of which, upon its sale to a retail purchaser, must, as a matter of law, be titled in the name of the retail purchaser and registered with the division of motor vehicles, shall be appraised for assessment purposes, as set forth in this article. Inventory, as used in this article, includes inventory of motorboats, as that term is defined in subdivision two, section eleven, article seven, chapter twenty, and subdivision twenty-four, subsection (a), section one, article six, chapter seventeen-a of this code, sold by motorboat retailers.

This article does not apply to units of inventory which are included in fleet sales, transactions between dealers or classified as heavy duty trucks of sixteen thousand pounds or more gross vehicular weight. For purposes of this article, inventory subject to the provisions of this article shall be denoted 'dealer vehicle inventory' and 'dealer motorboat inventory.' "

Having been engrossed, the bill was then read a third time.

The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for H. B. 3004, Prohibiting a person not the owner of a dog from removing tags, collars or apparel from a dog without the permission of the owner,
Com. Sub. for H. B. 3189, Reducing the total tax credits available under the capital company act during the fiscal year beginning on the first day of July, two thousand three,
Com. Sub. for H. B. 4009, Creating a position for a state Americans with disabilities coordinator within the department of administration,
Com. Sub. for H. B. 4019, Prohibiting the division of motor vehicles' sale of personal information for bulk distribution of surveys, marketing and solicitations,
H. B. 4056, Increasing service of process fees and providing that the fees collected be deposited in the West Virginia deputy sheriff retirement fund,
Com. Sub. for H. B. 4113, Requiring all state boards of examination and registration provided in chapter thirty of the code of West Virginia to have websites accessible to the public,

And,
Com. Sub. for H. B. 4130, Providing for the employment of a highly qualified and fully certified substitute teacher to perform the duties of a teacher who is in attendance of a meeting or professional development function held by or at the direction of the department of education.
H. B. 4283, Permitting all honorably retired law-enforcement officers of the state and the federal government to carry a concealed weapon free from providing bond and free of the payment of fees; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page nine, section four, lines two through six, by reinserting the stricken language.

On page nine, section four, line six, by striking out the words "a state, county, city, or other law-enforcement agency of the state of West Virginia or from a law-enforcement agency of the federal government".

On page nine, section four, line nine, following the semicolon, by striking out the words "is exempt from posting any bond" and the semicolon.

And,

On page nine, section four, line fifteen, after the period, by inserting the following: "Notwithstanding any other provision in this code to the contrary, former law-enforcement officers honorably retired or medically discharged are exempt from the posting of any bonds" and a period.

Having been engrossed, the bill was then read a third time.

The following bills on third reading, coming up in regular order, were each read a third time:

Com. Sub. for H. B. 4318, Imposing personal income tax on funds withdrawn from a prepaid college tuition contract or other college savings plans,

Com. Sub. for H. B. 4412, Requiring the children's health insurance board to submit a modification of its benefit plan,
H. B. 4431, Establishing a lottery scratch-off game for the benefit of West Virginia firefighters,
H. B. 4441, Expanding newborn screening by adding sickle cell anemia and adrenal hyperplasia,
Com. Sub. for H. B. 4455, Extending the term of the waste tire remediation funds,

And,
Com. Sub. for H. B. 4492, Creating the criminal offense of soliciting a minor via computer.
H. B. 4521, Increasing the current annual registration fee for underground storage tanks and requiring the DEP to annually report on the status of the fund and the underground storage tank program; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §22-17-20 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 17. UNDERGROUND STORAGE TANK ACT.

§22-17-20. Appropriation of funds; underground storage tank administrative fund.

(a) The director secretary shall collect annual registration fees from owners of underground storage tanks. The registration fee collected under this section shall not exceed twenty-five sixty-five dollars per tank per year. All such registration fees and the net proceeds of all fines, penalties and forfeitures collected under this article including accrued interest shall be paid into the state treasury into a special fund designated 'the underground storage tank administrative fund' to be used to defray the cost of administering this article in accordance with rules promulgated pursuant to section six of this article. The secretary shall promulgate an emergency rule in accordance with article three, chapter twenty-nine-a of this code, implementing the increase in registration fees. This fee of up to sixty-five dollars is effective for the fiscal year ending the thirtieth day of June, two thousand four.
(b) The total fee assessed shall be sufficient to assure a balance in the fund of not to exceed four five hundred thousand dollars at the beginning of each year.
(c) Any amount received pursuant to subsection (a) of this section which exceeds the annual balance required in subsection (b) of this section shall be deposited into the leaking underground storage tank response fund established pursuant to this article to be used for the purposes set forth therein.
(d) The net proceeds of all fines, penalties and forfeitures collected under this article shall be appropriated as directed by article XII, section 5 of the constitution of West Virginia. For the purposes of this section, the net proceeds of such fines, penalties and forfeitures are the proceeds remaining after deducting therefrom those sums appropriated by the Legislature for defraying the cost of administering this article. In making the appropriation for defraying the cost of administering this article, the Legislature shall first take into account the sums included in such the special fund prior to deducting such additional sums as may be needed from the civil fines, civil penalties and forfeitures collected pursuant to this article. At the end of each fiscal year any unexpended balance of such the collected civil fines, civil penalties, forfeitures and registration fees shall not be transferred to the general revenue fund but shall remain in the fund.
(e) The secretary shall submit an annual report to the joint committee on government and finance on or before the first day of January each year providing information as to the status of the underground storage tank fund, the registration fees or forfeitures collected and any fines and penalties assessed pursuant to this article, the amount of net proceeds of fines, penalties and forfeitures paid into the fund and information as to the progress of the underground storage tank program in the protection of human health and the environment."
Having been engrossed, the bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for H. B. 4535, Providing relief from property taxes for property damaged or destroyed in a disaster,
Com. Sub. for H. B. 4536, Establishing the law-enforcement reemployment act,
And,
H. B. 4562, Relating to the rights of members of the teachers' defined contribution retirement system to make a technical correction to clarify membership.
H. B. 4567, Relating to the motor carrier road tax and international fuel tax agreement; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page sixteen, section seven, line twenty, following the words "be revoked", by striking out the period and inserting in lieu thereof the words "until all the returns are filed and payments made" followed by a period.
And,
On page sixteen, section seven, line twenty-five, following the word "marker", by striking out the remainder of the subdivision and inserting in lieu thereof the words "and retained by the commissioner to defray the cost of issuing the identification markers" and a period.
Having been engrossed, the bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for H. B. 4593, Relating to compressed gas container safe transport,
H. B. 4598, Restricting courts from requiring conditions on the out of home placement of children inconsistent with existing licensing regulations,
Com. Sub. for H. B. 4605, Clarifying certain provisions of the West Virginia Code as they relate to domestic violence offenses and related protective orders that are issued by various courts,
Com. Sub. for H. B. 4655, Giving the children's health insurance program the right of subrogation,
H. B. 4658, Relating to defense of self, others and property and providing limited immunity from civil liability,
And,
H. B. 4671, Relating to the disposal of law enforcement weapons when replaced due to routine wear.
H. B. 4708, Adjusting the formula by which the Public Service Commission distributes wireless enhanced 911 fee revenues to the counties; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, after the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §24-6-6b of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 6. LOCAL EMERGENCY TELEPHONE SYSTEM.
§24-6-6b. Wireless enhanced 911 fee.

(a) Beginning on the first day of January, one thousand nine hundred ninety-eight, all CMRS providers, as defined in section two of this article, shall, on a monthly basis, collect from each of their in-state two-way service subscribers a wireless enhanced 911 fee. No later than the first day of August, one thousand nine hundred ninety-eight, the public service commission, shall, after the receipt of comments and the consideration of evidence presented at a hearing, issue an order which directs the CMRS providers regarding all relevant details of wireless enhanced 911 fee collection, including the determination of who is considered an in-state two-way service subscriber and which shall specify how the CMRS providers shall deal with fee collection shortfalls caused by uncollectible accounts. The public service commission shall solicit the views of the wireless telecommunications utilities prior to issuing the order.
(b) The wireless enhanced 911 fee is seventy-five cents per month for each valid retail commercial mobile radio service subscription, as that term is defined by the public service commission in its order issued under subsection (a) of this section.
(c) Beginning in the year one thousand nine hundred ninety-seven, and every two years thereafter, the public service commission shall conduct an audit of the wireless enhanced 911 fee and shall recalculate the fee so that it is the weighted average rounded to the nearest penny, as of the first day of March of the respecification year, of all of the enhanced 911 fees imposed by the counties which have adopted an enhanced 911 ordinance: Provided, That the wireless enhanced 911 fee may never be increased by more than twenty-five percent of its value at the beginning of the respecification year.
(d) The CMRS providers shall, after retaining a three percent billing fee, send the wireless enhanced 911 fee moneys collected, on a monthly basis, to the public service commission. The public service commission shall, on a quarterly and approximately evenly staggered basis, disburse the fee revenue in the following manner:
(1) Each county that does did not have a 911 ordinance in effect as of the effective date of this section or has enacted a 911 ordinance within the five years prior to the effective date of this section of the original enactment of this section in one thousand nine hundred and ninety-seven and has since enacted a 911 ordinance on or after the thirty-first day of May, one thousand nine hundred ninety-eight shall receive one percent of the fee revenues received by the public service commission and from the remainder of the revenues, each county shall receive a pro rata portion of the fee revenues received by the public service commission based on that county's percentage of the total number of local exchange telephone access lines and line equivalents in service in the state. The public service commission shall recalculate the county disbursement percentages on a yearly basis, with the changes effective on the first day of July, and using data as of the preceding first day of March. The public utilities which normally provide local exchange telecommunications service by means of lines, wires, cables, optical fibers or by other means extended to subscriber premises shall supply the data to the public service commission on a county specific basis no later than the first day of June of each year;
(2) Counties which have an enhanced 911 ordinance in effect shall receive their share of the wireless enhanced 911 fee revenue for use in the same manner as the enhanced 911 fee revenues received by those counties pursuant to their enhanced 911 ordinances;
(3) The public service commission shall deposit the wireless enhanced 911 fee revenue for each county which does not have an enhanced 911 ordinance in effect into an escrow account which it has established for that county. Any county with an escrow account may, immediately upon adopting an enhanced 911 ordinance, receive the moneys which have accumulated in the escrow account for use as specified in subdivision (2), subsection (d) of this section: Provided, That a county that adopts a 911 ordinance after the effective date of this section or has adopted a 911 ordinance within five years of the effective date of this section shall continue to receive one percent of the 911 fee revenue for a period of five years following the adoption of the ordinance and thereafter shall receive that county's portion of the fee revenue being disbursed to counties on a pro rata basis: Provided, however, That every five years from the year one thousand nine hundred ninety-seven, all fee revenue residing in escrow accounts shall be disbursed on the pro rata basis specified in subdivision (1), subsection (d) of this section, except that data for counties without enhanced 911 ordinances in effect shall be omitted from the calculation and all escrow accounts shall begin again with a zero balance.
(e) CMRS providers have the same rights and responsibilities as other telephone service suppliers in dealing with the failure by a subscriber of a CMRS provider to timely pay the wireless enhanced 911 fee.
(f) Notwithstanding the provisions of section one-a of this article, for the purposes of this section, the term 'county' means one of the counties provided for in section one, article one, chapter one of this code.
(g) From any funds distributed to a county pursuant to this section, a total of three percent quarter shall be set aside in a special fund to be used exclusively for the purchase of equipment that will provide information regarding the x and y coordinates of persons who call an emergency telephone system through a commercial mobile radio service: Provided, That upon purchase of the necessary equipment, the special fund shall be dissolved and any surplus shall be used for general operation of the emergency telephone system as may otherwise be provided by law."
Having been engrossed, the bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
H. B. 4737, Providing options for members of teachers retirement to make contributions for periods of temporary total disability,
H. B. 4738, Relating to salaries, wages and other benefits of school service personnel,
And,
H. B. 4745, Relating to administration of repairs to vehicles and equipment by the division of highways.
On the passage of the bills, the yeas and nays were taken (Roll No. 321), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (Com. Sub. for S. B. 52, S. B. 268, S. B. 269, S. B. 324, H. B. 2692, Com. Sub. for H. B. 3004, Com. Sub. for H. B. 3189, Com. Sub. for H. B. 4009, Com. Sub. for H. B. 4019, H. B. 4056, Com. Sub. for H. B. 4113, Com. Sub. for H. B. 4130, H. B. 4283, Com. Sub. for H. B. 4318, Com. Sub. for H. B. 4412, H. B. 4431, H. B. 4441, Com. Sub. for H. B. 4455, Com. Sub. for H. B. 4492, H. B. 4521, Com. Sub. for H. B. 4535, Com. Sub. for H. B. 4536, H. B. 4562, H. B. 4567, Com. Sub. for H. B. 4593, H. B. 4598, Com. Sub. for H. B. 4605, Com. Sub. for H. B. 4655, H. B. 4658, H. B. 4671, H. B. 4708, H. B. 4737, H. B. 4738 and H. B. 4745) passed.
An amendment to the title of H. B. 2692, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 2692 - "A Bill to amend and reenact §11-6C-1 of the code of West Virginia, 1931, as amended, relating to appraising of dealer inventory and including motorboat inventory sold by motorboat retailers within the scope of the section."
An amendment to the title of H. B. 4283, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 4283 - "A Bill to amend and reenact §61-7-4 of the code of West Virginia, 1931, as amended, relating to all honorably retired law-enforcement officers of the state being exempt from application fees and from bonding requirements."
An amendment to the title of H. B. 4521, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 4521 - "A Bill to amend and reenact §22-17-20 of the code of West Virginia, 1931, as amended, relating to the underground storage tank act; increasing the annual registration fee; requiring emergency rule; increasing cap amount for underground storage tank fund; and requiring annual report to the Joint Committee on Government and Finance."
An amendment to the title of H. B. 4567, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 4567 - "A Bill to amend and reenact §11-14A-2, §11-14A-3a, §11-14A-4, §11-14A-5, §11-14A-6, §11-14A-7, §11-14A-9, §11-14A-11, §11-14A-13, §11-14A-16, §11-14A-27 and §11- 14A-28 of the code of West Virginia, 1931, as amended; and to further amend and reenact §11-14B- 1, §11-14B-2, §11-14B-3, §11-14B-5, §11-14B-6, §11-14B-10 and §11-14B-14 of said code, all relating to the motor carrier road tax and international fuel tax agreement; defining certain motor carrier road tax terms; applying motor carrier road tax to household goods carriers and independent contractors; establishing liability for tax between lessors and lessees; restating method of computing tax; revising time for payment of taxes and filing reports; providing penalty for failure to maintain certain records; authorizing tax commissioner to issue assessment for erroneously calculated tax; requiring identification markers and providing for the revocation and removal thereof; prohibiting trip permits for certain motor carriers; providing civil penalty of revocation when taxpayer acts contrary to law; establishing new crimes and providing criminal penalties therefor; providing for administration of certain credits against motor carrier road tax; eliminating requirement for surety bond conditioned on compliance with law; authorizing disposition of taxes collected under article fourteen-b, chapter eleven of this code; increasing penalty for failure to file return when no tax due; authorizing interest rate on delinquent motor carrier road tax to be one percent per month; establishing effective date of amendments; defining certain international fuel tax agreement terms; establishing identification marker requirements; reserving authority of state to determine applicability of state law; establishing application of article fourteen-a, chapter eleven of this code; specifying those subject to the provisions of the article fourteen-a, chapter eleven of this code; authorizing audits by the tax commissioner; and providing that state law controls in the event of inconsistency with the international fuel tax agreement."
Delegate Staton moved that Com. Sub. for H. B. 3189 take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 356), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3189) takes effect July 1, 2004.
Delegate Staton moved that Com. Sub. for H. B. 4130 take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 357), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4130) takes effect July 1, 2004.
Delegate Staton moved that H. B. 4521 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 358), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead.
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4521) takes effect from its passage.
Delegate Staton moved that H. B. 4738 take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 359), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4738) takes effect July 1, 2004.
Delegates Walters and Armstead requested that the Journal record him as voting "Nay" on the passage of H. B. 4521.
Delegate Armstead requested that the Journal record him as voting "Nay" on the passage of H. B. 4431.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence on those bills requiring the same.


First Reading

The Clerk announced that, pursuant to House Rule 70a, the following request had been filed with him for the removal of bills from the Consent Calendar to the House Calendar:
H. B. 4485, on first reading, Consent Calendar, to the House Calendar, by Delegate Amores.
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
S. B. 199, Relating to appointments to commission for deaf and hard-of-hearing,
S. B. 296, Continuing center for professional development board,
S. B. 471, Continuing state board of risk and insurance management,
H. B. 2237, Adding a magistrate in Wood County,
H. B. 2991, Relating to the fee charged by fiduciary commissioners in settling an estate
H. B. 4048, Updating references to the university of West Virginia board of trustees and the state college system board of directors with current reference to the higher education policy commission,
Com. Sub. for H. B. 4354, Authorizing county commissions to adopt ordinances to reduce false alarms,
H. B. 4446, Modifying various procedures related to motor vehicle mandatory insurance,
Com. Sub. for H. B. 4495, Providing that the assignment and transfer of real property for research and development at institutions of higher education for economic development purposes includes housing projects,
H. B. 4515, Giving precedential application to written advisory opinions issued by the ethics commission's committee on open governmental meetings,
H. B. 4585, Permitting the use of speaker phones or other electronic means unless specifically prohibited by articles of incorporation or bylaws,
H. B. 4613, Relating to the employment of home incarceration supervisors,
And,
H. B. 4634, Requiring persons incarcerated in county and regional jails who have been convicted of a misdemeanor reimburse the county for the cost incurred for his or her incarceration.


Special Calendar

Unfinished Business

H. C. R. 3, Naming a portion of state route 75 and U. S. route 52 the "Big Green Memorial Highway"; on unfinished business, coming up in regular order, 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.
H. C. R. 4, Establishing a "Robert L. Bradley, M. D., Ph. D., Brigadier General Memorial Highway" ; on unfinished business, coming up in regular order, 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.
H. C. R. 23, Naming the bridge, located approximately one mile east of the Huntington Mall on Route 60, the "George Adam Floding Bridge"; on unfinished business, coming up in regular order, 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.
H. C. R. 47, Requesting a study on providing limitations on nurse overtime policies in hospitals operated by state agencies within West Virginia ; on unfinished business, coming up in regular order, 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 12:10 p.m., on motion of Delegate Staton, the House of Delegates recessed until 1:15 p.m., and reconvened at that time.
Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred H. B. 4669, H. B. 4660, H. B. 4661, H. B. 4008 and H. B. 4059, all on third reading, House Calendar to the Special Calendar in that order; and H. B. 4444, on third reading, Special Calendar to the House Calendar.


Third Reading

H. B. 4669, Providing for establishment of special five-year demonstration professional development school project; on third reading, coming up in regular order, was reported by the Clerk.
Delegate Poling asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
Delegate Poling moved to amend the bill on page four, line forty-nine, by inserting a new subdivision (3) to read as follows:
"(3) To require specialized training and knowledge of the needs, learning styles and strategies that will most effectively improve the performance of disadvantaged, minority and under-achieving students in demonstration project schools. These powers include, but not limited to, the authority to craft job descriptions with requirements regarding training and experience and the right to specify job duties which are related to job performance that reflect the mission of the demonstration project school."
On the adoption of the amendment, Delegate Poling demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 360), and there were--yeas 55, nays 43, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Mr. Speaker, Mr. Kiss, and Delegates Amores, Armstead, Azinger, Beach, Beane, Calvert, Campbell, Cann, Crosier, Doyle, Ennis, Faircloth, Foster, Frederick, Hall, Hartman, Kominar, Long, Mahan, Mezzatesta, Michael, Overington, Palumbo, Perry, Pethtel, Pino, Proudfoot, Renner, Shaver, Shelton, Spencer, Stalnaker, Staton, Stemple, Swartzmiller, Talbott, Trump, Varner, Warner, Webster, H. White and Williams.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.
At 1:49 p.m., on motion of Delegate Staton, the House of Delegates recessed for five minutes, and reconvened at that time.
At the request of Delegate Staton, and by unanimous consent, H. B. 4669 was laid at the foot of bills on third reading, Special Calendar.
H. B. 4660, Providing for the disposition of funds or assets recovered in a legal action or settlement by or on behalf of the general public, the state or its officers, agencies or political subdivisions; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, after the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §5-3-5 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §5-3-6, all to read as follows:
ARTICLE 3. ATTORNEY GENERAL.
§5-3-5. Fees to be paid into state treasury.
On the final determination of any cause in any of the courts mentioned in the second section of this article, in which the attorney general appeared for the state, the clerk thereof shall certify to the auditor the fee of the attorney general which was taxed in the bill of costs against the defendant, and when such fee shall be collected it shall be paid into the state treasury and placed to the credit of the state fund.
§5-3-5. Attorney General's Litigation Support Fund.
(a) There is established in the state treasury a special fund to be known as the "Attorney General's Litigation Support Fund."
(b)(1) The fund may consist of any and all monies designated by a court order as reasonable attorney fees and related expenses received by the attorney general pursuant to this section as a result of any fees, fines, restitution, forfeitures, penalties, costs, interest, or judgments collected pursuant to any civil litigation, or any administrative proceedings, or in settlement of any claim asserted by or against the people of West Virginia, the state of West Virginia, or any of its departments, agencies, institutions, officers, employees, or political subdivisions thereof.
Monies in the fund shall be available for expenditure only upon appropriation by the Legislature in accordance with the provisions of West Virginia Constitution, article six, section fifty-one.
(2) Notwithstanding any provision of subdivision (1) of this subsection to the contrary, the fees, fines, restitution, forfeitures, penalties, costs, interest, judgments or settlements received by the office of the attorney general on behalf of the people of West Virginia, the state of West Virginia, or any of its departments, agencies, institutions, officers, employees, or political subdivisions thereof that are in excess of the actual expenses of the office of the attorney general pursuant to the litigation or the issue settled shall, after the payment of any attorney fees and related expenses to the attorney general's litigation support fund as provided for by subdivision (1) of this subsection, be deposited in the treasury of the state to the credit of the state fund, general revenue, unless:
(A) The recovery or a portion thereof was on behalf of a special fund established under the provisions of this code, in which event the money shall be deposited in such special fund established in the state treasury;
(B) The recovery or a portion thereof was on behalf of or required to be held in a trust fund, in which event the money shall be deposited in a special fund established in the state treasury to be held in trust;
(C) The recovery was on behalf of a political subdivision of the state, in which event the remainder of the recovery shall be transmitted to the treasurer of such political subdivision for deposit in its general fund;
(D) Amounts were recovered as attorney fees and expenses separate and apart from any amounts recovered by the state or the attorney general by a person not employed by the state who provided legal services in the matter as a special assistant attorney general appointed by the attorney general for that purpose, in which event, those attorney fees and expenses shall not be deposited into the treasury of the state nor into the attorney general's litigation support fund, but retained by the special assistant attorney general; or
(E) The recovery or a portion thereof was for specifically identified persons, in which event the money shall be deposited into a pass through account in a banking institution designated by and administered subject to conditions established to ensure the accountability of the disbursement of the funds by the state treasurer;
(3) The actual expenses of the office of the attorney general pursuant to litigation or the issue settled shall be certified by the attorney general to the governor, the secretary of the department of administration, the president of the Senate and the speaker of the House of Delegates.
(4) Notwithstanding any provision of this subsection to the contrary, or any other provision of law, the attorney general may not expend the proceeds of judgments or settlements of any kind, or any part thereof, for the use of the office of the attorney general in excess of the actual expenses of the office of the attorney general pursuant to the litigation or the issue settled.
(c) The attorney general may expend monies appropriated by the Legislature from the attorney general's litigation support fund for the performance of any of the powers, functions, duties, and responsibilities of the office of the attorney general.
(d) The attorney general's litigation support fund shall be placed under the management or administration of the attorney general for the purpose of performing any of the functions, duties, powers, and responsibilities of the office of the attorney general and all monies deposited in the fund are available for appropriation to the office of the attorney general.
(e) The appropriation of these monies shall be in addition to any monies appropriated to the office of the attorney general from any other sources.
(f) Neither the attorney general, nor any employee of that office, shall have any financial interest in the investment of monies in the fund nor receive any commission with respect thereto.
(g) It shall be the duty of the attorney general to keep detailed permanent records of all expenditures and disbursements from the fund.
(h) On or before the fifteenth day of January, April, July and October, the attorney general shall cause to be filed with the governor, with copies to the secretary of the department of administration, the president of the Senate and the Speaker of the House of Delegates, a full and complete account of the receipts and disbursements from the fund in the previous calendar quarter.
§5-3-6. Public accountability for funds or assets recovered by the attorney general and other officer or agencies of the state through judgment or settlement; applicability of open records and open meetings laws; administration and disbursement of state judgment or settlement proceeds.

(a) The Legislature hereby finds and declares that:
(1) Public accountability for funds or other assets recovered in a legal action or settlement by or on behalf of the general public, the state or its officers, agencies or political subdivisions is appropriate and required, whether the character of the assets or funds recovered is public or private;
(2) Accountability for assets or funds recovered by the attorney general or other officer or agency of the state is essential to the public trust, and is even more critical when the attorney general or other officer of the state was a party to the action that resulted in the recovery by virtue of the public office he or she holds;
(3) Public accountability demands the applicability of the freedom of information law, article one, chapter twenty-nine-b of this code, and the open governmental proceedings law, article nine-a, chapter six of this code, so that the actions of individuals or agencies who are charged with the administration of funds or other assets are conducted in full view, and are open to public scrutiny;
(4) While it may be important that, in certain circumstances, funds or assets received retain their character, identity, and purpose, it is also important that the process by which funds are administered be open to public scrutiny and be accountable to the public; and
(5) The power to appropriate funds for public purposes is solely within the purview of the legislative branch of government, and the Legislature, as a steward of the budgetary process, shall take steps to assure that settlements are handled in a manner that assures maximum accountability to the citizens of the state and their duly elected legislative representatives.
(b) Therefore, any other provision of the common law or statutory law to the contrary notwithstanding:
(1) Whenever the attorney general or other officer or agency of the state is a party to or has entered his or her appearance in, a legal action on behalf of the state of West Virginia, including ex rel. or other type actions, and a disposition of that action has resulted in the recovery of funds or assets to be held in trust by the state, through court action or otherwise, to administer the trust funds or assets, for charitable, eleemosynary, benevolent, educational, or similar public purposes, those funds shall be deposited in a special revenue account or trust fund established in the state treasury. The attorney general or other officer or agency of the state or a person, organization, or entity created by the attorney general or other officer or agency of the state are prohibited from administering trust funds or assets for charitable, eleemosynary, benevolent, educational, or similar public purposes;
(2) Except as otherwise provided in this section, any funds or assets not for charitable, eleemosynary, benevolent, educational, or similar public purposes, of any kind or nature whatsoever, including, but not limited to, public funds and private funds or assets when recovered by judgment or settlement of a legal action by or on behalf of the state of West Virginia, including ex rel. or other type actions filed by the attorney general or other officer or agency of the state under their statutory or common law authority shall be deemed public funds, and shall be deposited in the state treasury in the general revenue fund; and
(3) No funds to which this subsection applies when deposited in an account in the state treasury shall be disbursed without a specific legislative appropriation of the deposited funds by the
Legislature while in regular or extraordinary legislative session.
(c) The common law, including the common law authority of any duly elected statewide constitutional officer or other officer of the state, is specifically abrogated to the extent it is inconsistent with the provisions of this section.
(d) The provisions of this section shall not apply to actions by or on behalf of the state or its duly elected statewide constitutional officers or any other state official or agency, if the recovery sought and received is for specific individuals identified as parties to the action either by individual social security number, other individual identifying number, or by the individual's proper name.
(e) In the preparation of a judgment order that will result in the recovery of funds or assets by the state, the attorney general or other officer or agency of the state who is a party to or has entered his or her appearance in the action on behalf of the state of West Virginia shall advise the court of the provisions of this section.
(f) In the event of an extra-judicial settlement that would result in the recovery of funds or assets by the state, the attorney general or other officer or agency of the state acting on behalf of the state of West Virginia shall not agree to any terms contrary to the provisions of this section.
(g) Notwithstanding any statute or common law to the contrary, and except as provided in this subsection, an elected statewide constitutional officer or any other state official or agency shall not file or participate as a plaintiff, petitioner, party, intervening party, attorney, or amicus curiae in support of any litigation challenging the constitutionality of this section. State funds and employee time shall not be expended by any person or agency in support of such a challenge. If the constitutionality of this section is challenged, the governor, president of the Senate and Speaker of the House of Delegates, in their official capacities, shall be the only named respondents in that litigation.
"
Having been engrossed, the bill was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 361), and there were--yeas 68, nays 26, absent and not voting 6, with the nays and absent and not voting being as follows:
Nays: Brown, Butcher, Caputo, DeLong, Ellem, Ferrell, Fleischauer, Hamilton, Hrutkay, Kuhn, Louisos, Manchin, Manuel, Martin, Perdue, Poling, Schadler, Shaver, Spencer, R. Thompson, Tucker, Walters, Webb, Webster, Wright and Yost.
Absent And Not Voting: Ashley, Coleman, Howard, Leggett, Mezzatesta and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4660) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 4660 - "A Bill to amend and reenact §5-3-5 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §5-3-6, providing for the disposition of funds or assets recovered in a legal action or settlement by or on behalf of the general public, the state or its officers, agencies or political subdivisions; establishing the attorney general's litigation support fund; providing for the deposit of certain money into the fund; providing for the deposit of certain money into the general revenue fund of the state and exceptions thereto; requiring certification, records and reports of certain monies recovered and prescribing the use thereof; requiring certain disposition of funds to be held in trust; limiting certain powers to administrate certain funds; requiring legislative appropriation of certain funds; requiring certain advice be given to courts; prohibiting agreements to settle contrary to law; limiting actions and expenditures of funds public funds to challenge the constitutionality of the section; and limiting respondent parties to such action."
Delegates Howard, Fragale and Iaquinta requested that the Journal record them as voting "Yea" on the adoption of the amendment.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4661, Requiring the attorney general to provide legal services upon the request of state agencies; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
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 3. ATTORNEY GENERAL
§5-3-1. Written opinions and advice.

The attorney general shall give written opinions and advice upon questions of law, and shall prosecute and defend suits, actions, and other legal proceedings, and generally render and perform all other legal services, whenever required to do so, in writing, by the governor, the secretary of state, the auditor, the state superintendent of free schools, the treasurer, the commissioner of agriculture, the board of public works, the tax commissioner, the state archivist and historian, the commissioner of banking, the adjutant general, the director of the division of environmental protection, the superintendent of public safety, the state commissioner of public institutions, the commissioner of the division of highways, the commissioner of the bureau of employment programs, the public service commission, or any other state officer, board or commission, or the head of any state educational, correctional, penal or eleemosynary institution; and it is unlawful from and after the time this section becomes effective for any of the public officers, commissions, or other persons above mentioned to expend any public funds of the state of West Virginia for the purpose of paying any person, firm, or corporation for the performance of any legal services: Provided, That nothing contained in this section impairs or affects any existing valid contracts of employment for the performance of legal services heretofore made.
It is also the duty of the attorney general to render to the president of the Senate and/or the speaker of the House of Delegates a written opinion or advice upon any questions submitted to the attorney general by them or either of them whenever he or she is requested in writing so to do.
Upon written request, the attorney general shall give his or her written opinion and advice on a question of law that is connected with the interests of the state and that is within the scope of the duties or discretion of the requesting person or governmental entity with regard to legal matters that are currently pending before that person or governmental entity, and shall prosecute and defend suits, actions, and other legal services on behalf of the people of West Virginia, the state of West Virginia, or any of its departments, agencies, institutions, officers, employees, or political subdivisions thereof, whenever required to do so by the following persons or entities:
(1) In the legislative branch of state government, such services may be requested by:
(A) The president of the Senate;
(B) The speaker of the House of Delegates;
(C) The joint committee on government and finance;
(D) The chairman of the senate committee on the judiciary;
(E) The chairman of the house committee on the judiciary;
(F) The chairman of the senate committee on finance;
(G) The chairman of the house committee on finance;
(H) The chairman of the senate committee on government organizations;
(I) The chairman of the house committee on government organizations;
(J) The chairman of the senate committee on education;
(K) The chairman of the house committee on education;
(L) The clerk of the Senate;
(M) The clerk of the House of Delegates;
(N) The court of claims; or
(O) The legislative manager; and
(2) In the executive branch of state government, such services may be requested by the following elected officers:
(A) The governor;
(B) The secretary of state;
(C) The auditor;
(D) The treasurer; or
(E) The commissioner of agriculture; and
(3) In the executive branch of state government, such services may be requested by the following appointed officers or entities:
(A) The secretary of the department of administration;
(B) The secretary of the department of education and the arts;
(C) The secretary of the department of environmental protection;
(D) The secretary of the department of health and human resources;
(E) The secretary of the department of military affairs and public safety;
(F) The secretary of the department of tax and revenue;
(G) The secretary of the department of transportation;
(H) The commissioner of the bureau of employment programs;
(I) The public service commission;
(J) The bureau child support enforcement;
(K) The commissioner of the division of culture and history;
(L) The commissioner of banking;
(M) The adjutant general;
(N) The director of the division of environmental protection;
(O) The superintendent of the West Virginia state police;
(P) The commissioner of corrections;
(Q) The commissioner of the division of highways;
(R) The public service commission;
(S) The head of any state educational, correctional, penal or eleemosynary institution; or
(T) Any other appointed officer, board or commission.
§5-3-2. Act as counsel for state; duties and powers as to prosecuting attorneys; defense of national guardsmen.

(a) The attorney general shall, upon written request by an officer or entity described in section one of this article, provide the following services:
(1) appear Appear as counsel for the state in all causes pending in the supreme court of appeals, or in any federal court, in which the state is interested;
(2) he shall appear Appear in any cause in which the state is interested that is pending in any other court in the state,; on the written request of the governor, and when such appearance is entered he shall take charge of and have control of such cause;
(3) he shall defend Defend all actions and proceedings against any state officer in his official capacity in any of the courts of this state or any of the federal courts when the state is not interested in such cause against such officer, but should the state be interested against such officer, he shall appear for the state;
(4) he shall institute Institute and prosecute all civil actions and proceedings in favor of or for the use of the state which may be necessary in the execution of the official duties of any state officer, board or commission on the written request of such officer, board or commission;.
(b) he The attorney general shall, when requested by the prosecuting attorney of a county wherein a state institution of correction is located, provide attorneys for appointment as special prosecuting attorneys to assist the prosecuting attorney of said county in the prosecution of criminal proceedings when, in the opinion of the circuit judge of said county, or a justice of the West Virginia supreme court of appeals, extraordinary circumstances exist at said institution which render the financial resources of the office of the prosecuting attorney inadequate to prosecute said cases; he may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office, and may require a written report from them of the state and condition of the several causes, in which the state is a party, pending in the courts of their respective counties; he may require the several prosecuting attorneys to perform, within the respective counties in which they are elected, any of the legal duties required to be performed by the attorney general which are not inconsistent with the duties of the prosecuting attorneys as the legal representatives of their respective counties; when the performance of any such duties by the prosecuting attorney conflicts with his duties as the legal representative of his county, or for any reason any prosecuting attorney is disqualified from performing such duties, the attorney general may require the prosecuting attorney of any other county to perform such duties in any county other than that in which such prosecuting attorney is elected and for the performance of which duties outside of the county in which he is elected the prosecuting attorney shall be paid his actual traveling and other expenses out of the appropriation for contingent expenses for the department for which such services are rendered; the attorney general shall keep in proper books, a register of all causes prosecuted or defended by him in behalf of the state or its officers and of the proceedings had in relation thereto, and deliver the same to his successor in office; and he shall preserve in his office all his official opinions and publish the same in his biennial report.
(c) Upon request of any member of the West Virginia national guard who has been named defendant in any civil action arising out of that guardsman's action while under orders from the governor relating to national guard assistance in disasters and civil disorders, the attorney general shall appear as counsel for and represent such guardsman.
(d) The Legislature may authorize any of the officers or entities described in section one of this article to expend public funds of the state of West Virginia for the purpose of paying any person, firm, or corporation for the performance of any legal services provided for in this section. Notwithstanding that an officer or entity has expended public funds for legal services under a legislative authorization, that person or entity may still request, from time to time, that the attorney general provide the services described in this article."
Having been engrossed, the bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 362), and there were--yeas 48, nays 49, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Border, Brown, Butcher, Calvert, Canterbury, Caputo, Carmichael, DeLong, Duke, Ellem, Faircloth, Ferrell, Fleischauer, Fragale, Frich, Hall, Hamilton, Hatfield, Howard, Hrutkay, Iaquinta, Kuhn, Leggett, Louisos, Manchin, Manuel, Martin, Paxton, Perdue, Poling, Romine, Schadler, Schoen, Smirl, Sobonya, Spencer, Sumner, Talbott, R. Thompson, Trump, Tucker, Wakim, Walters, Webb, Webster, Wright and Yost.
Absent And Not Voting: Coleman, Susman and Yeager.
So, a majority of the members present and voting not having voted in the affirmative, the Speaker declared the bill (H. B. 4661) rejected.
H. B. 4008, Abolishing the insurance and retirement division and creating a new employee and insurance services division ; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
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 §5-10D-1, §5-10D-2 and §5-10D-3 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §5-16-3 and §5-16-4 of said code be amended and reenacted; that said code be further amended by adding thereto a new section, designated §5-16-4a; that §5A-1-2 of said code be amended and reenacted; that said code be further amended by adding thereto a new article, designated §5A-10-1, §5A-10-2 and §5A-10-3; and that §29-6-5 and §29-6-6 of said code be amended and reenacted, all to read as follows:


CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,

SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD

OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,

OFFICES, PROGRAMS, ETC.

ARTICLE 1. THE GOVERNOR.
§5-10D-1. Consolidated public retirement board continued; members; vacancies; investment of plan funds.


(a) There is hereby continued a consolidated public retirement board to administer all public retirement plans in this state. It shall administer the public employees retirement system established in article ten of this chapter; the teachers retirement system established in article seven-a, chapter eighteen of this code; the teachers' defined contribution retirement system created by article seven-b of said chapter; the West Virginia state police death, disability and retirement fund created by article two, chapter fifteen of this code; the West Virginia state police retirement system created by article two-a of said chapter; the death, disability and retirement fund for deputy sheriffs created by article fourteen-d, chapter seven of this code; and the judges' retirement system created under article nine, chapter fifty-one of this code.

(b) The consolidated public retirement board shall begin administration of the death, disability and retirement fund for deputy sheriffs established in article fourteen-d, chapter seven of this code on the first day of July, one thousand nine hundred ninety-eight.

(c) (b) The membership of the consolidated public retirement board consists of:

(1) The governor or his or her designee;

(2) The state treasurer or his or her designee;

(3) The state auditor or his or her designee;

(4) The secretary of the department of administration or his or her designee

(4) The commissioner of the employee and insurance services division of the department of administration;

(5) Four residents of the state, who are not members, retirants or beneficiaries of any of the public retirement systems, to be appointed by the governor, with the advice and consent of the Senate; and

(6) A member, annuitant or retirant of the public employees retirement system who is or was a state employee; a member, annuitant or retirant of the public employees retirement system who is not or was not a state employee; a member, annuitant or retirant of the teachers retirement system; a member, annuitant or retirant of the West Virginia state police death, disability and retirement fund; a member, annuitant or retirant of the deputy sheriff's death, disability and retirement fund; and a member, annuitant or retirant of the teachers' defined contribution retirement system, all to be appointed by the governor, with the advice and consent of the Senate.

(d) (c) The appointed members of the board shall serve five-year terms. The governor shall appoint the member representing the deputy sheriff's death, disability and retirement fund by the first day of July, one thousand nine hundred ninety-eight, to a five-year term. A member appointed pursuant to subdivision (6), subsection (c) (b) of this section ceases to be a member of the board if he or she ceases to be a member of the represented system. If a vacancy occurs in the appointed membership, the governor, within sixty days, shall fill the vacancy by appointment for the unexpired term. No more than five appointees shall be of the same political party.

(e) (d) The consolidated public retirement board has all the powers, duties, responsibilities and liabilities of the public employees retirement system established pursuant to article ten of this chapter; the teachers retirement system established pursuant to article seven-a, chapter eighteen of this code; the teachers' defined contribution system established pursuant to article seven-b of said chapter; the West Virginia state police death, disability and retirement fund created pursuant to article two, chapter fifteen of this code; the death, disability and retirement fund for deputy sheriffs created pursuant to article fourteen-d, chapter seven of this code; and the judges' retirement system created pursuant to article nine, chapter fifty-one of this code and their appropriate governing boards. The consolidated public retirement board may propose for promulgation all rules necessary to effectuate its powers, duties and responsibilities pursuant to article three, chapter twenty-nine-a of this code: Provided, That the board may adopt any or all of the rules, previously promulgated, of a retirement system which it administers.

(f) Effective on the first day of July, one thousand nine hundred ninety-six, the consolidated public retirement board shall, within two business days of receipt, transfer (e) The consolidated public retirement board shall continue to transfer all funds received by the consolidated public retirement board for the benefit of the retirement systems within the consolidated pension plan as defined in section three-c, article six-b, chapter forty-four of this code, including, but not limited to, all employer and employee contributions, to the West Virginia investment management board: Provided, That the employer and employee contributions of the teachers' defined contribution system, established in section three, article seven-b, chapter eighteen of this code, and voluntary deferred compensation funds invested by the West Virginia consolidated public retirement board pursuant to section five, article ten-b of this chapter may not be transferred to the West Virginia investment management board.

(g) (f) Notwithstanding any provision of this code or any legislative rule to the contrary, all assets of the public retirement plans set forth in subsection (a) of this section shall be held in trust. The consolidated public retirement board shall be a trustee for all public retirement plans, except with regard to the investment of funds: Provided, That the consolidated public retirement board shall be a trustee with regard to the investments of the teachers' defined contribution system, the voluntary deferred compensation funds invested pursuant to section five, article ten-b of this chapter and any other assets of the public retirement plans administered by the consolidated public retirement board as set forth in subsection (a) of this section for which no trustee has been expressly designated in this code.

(h) (g) The board may employ the West Virginia investment management board to provide investment management consulting services for the investment of funds in the teachers' defined contribution system.
§5-10D-2. Chairman and vice chairman; executive director; employees; legal advisor; actuary.


(a) The board shall elect from its own number a chairman and vice chairman.

(b) The board shall appoint an executive director of the retirement systems. The executive director shall be the chief administrative officer of all the systems and he or she shall not be a member of the board. He or she shall perform such duties as are required of him or her in this article and as the board from time to time delegates to him or her. The compensation of the executive director shall be fixed by the board subject to the approval of the governor. The executive director shall, with the approval of the board of trustees, employ such administrative, technical and clerical employees as are required in the proper operation of the systems.

(c) Notwithstanding the provisions of section two, article three of this chapter, the board shall employ and be represented by an attorney licensed to practice law in the state of West Virginia. who is not a member of any of the retirement systems administered by the board

(d) An actuary, employed by the state or the board pursuant to section four of this article, shall be the actuarial consultant to the board.

(e) Prior to the first day of July, one thousand nine hundred ninety-one, the expenses of the board for the administration of the teachers' defined contribution retirement system created pursuant to article seven-b, chapter eighteen of this code shall be paid by the teachers retirement system created pursuant to article seven-a of said chapter.
§5-10D-3. Board meetings; quorum; vote; proceedings; compensation.

(a) The board shall hold a meeting at least once each three months, and shall designate the time and place thereof. Seven voting trustees constitute a quorum at any meeting of the board. Each member is entitled to one vote on each question before the board. The board shall adopt its own rules of procedure and shall keep a record of its proceedings. All meetings of the board shall be public.

(b) The members shall serve as members without compensation for their services as such: Provided, That each member shall be reimbursed, upon approval of the board, for any necessary expenses actually incurred by him or her in carrying out his or her duties. The board shall pay each member the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties, as recommended by the citizens legislative compensation commission and authorized by law for each day or portion of a day engaged in the discharge of official duties. No public employee member may suffer any loss of salary or wages on account of his or her service as trustee. ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-3. Composition of public employees insurance agency; appointment, qualification, compensation and duties of director of agency; employees; civil service coverage; director vested after specified date with powers of public employees insurance board.


(a) The public employees insurance agency consists of the director, the finance board, the advisory board and any employees who may be authorized by law. The director shall be appointed by the governor, with the advice and consent of the Senate commissioner of the employee and insurance services division of the department of administration. He or she shall serve at the will and pleasure of the governor, unless earlier removed from office for cause as provided by law. The director shall have at least three years' experience in health insurance administration or governmental health benefit administration as his or her primary employment duty prior to appointment as director. The director shall be employed pursuant to an employment contract which may have a multi-year term, not to exceed five years per contract. Notwithstanding any other provision of this code to the contrary, the director's salary shall be set by the commissioner of the employee and insurance services division, with the approval of the secretary of the department of administration. The current director will continue to be eligible to serve as director through the thirtieth day of June, two thousand four. The director shall receive actual expenses incurred in the performance of official business. The director shall employ such administrative, technical and clerical employees that are required for the proper administration of the insurance programs provided for in this article. The director shall perform the duties that are required of him or her under the provisions of this article and is the chief administrative officer of the public employees insurance agency. The director may employ a deputy director.

(b) All positions in the agency, except for the director, his or her personal secretary, the deputy director and the chief financial officer shall be included in the classified service of the civil service system pursuant to article six, chapter twenty-nine of this code. Any person required to be included in the classified service by the provisions of this subsection who was employed in any of the positions included in this subsection on or after the effective date of this article shall not be required to take and pass qualifying or competitive examinations upon or as a condition to being added to the classified service: Provided, That no person required to be included in the classified service by the provisions of this subsection who was employed in any of the positions included in this subsection as of the effective date of this section shall be thereafter severed, removed or terminated in his or her employment prior to his or her entry into the classified service except for cause as if the person had been in the classified service when severed, removed or terminated.

(c) The director is responsible for the administration and management of the public employees insurance agency as provided for in this article and in connection with his or her responsibility may make all rules necessary to effectuate the provisions of this article. Nothing in section four or five of this article limits the director's ability to manage on a day-to-day basis the group insurance plans required or authorized by this article, including, but not limited to, administrative contracting, studies, analyses and audits, eligibility determinations, utilization management provisions and incentives, provider negotiations, provider contracting and payment, designation of covered and noncovered services, offering of additional coverage options or cost containment incentives, pursuit of coordination of benefits and subrogation, or any other actions which would serve to implement the plan or plans designed by the finance board. The director is to function as a benefits management professional and should avoid political involvement in managing the affairs of the public employees insurance agency.
§5-16-4. Public employees insurance agency finance board continued; qualifications, terms and removal of members; quorum; compensation and expenses; termination date.


(a) There is hereby continued the public employees insurance agency finance board, which consists of the director commissioner of the employee and insurance services division of the department of administration and six eight members appointed by the governor with the advice and consent of the Senate for terms of four years and until the appointment of their successors. Provided, That of the two members added to the board by the amendment of this section, enacted during the regular legislative session, one thousand nine hundred ninety-nine, the at-large member shall be appointed for an initial term of two years and the member representing organized labor shall be appointed for a term of four years Members may be reappointed for successive terms. No more than four five members (including the director commissioner) may be of the same political party.

(b) Of the six eight members appointed by the governor, one member shall represent the interests of education employees, one shall represent the interests of public employees, one shall represent the interests of retired employees, one shall represent the interests of organized labor and three four shall be selected from the public at large. The governor shall appoint the member representing the interests of education employees from a list of three names submitted by the largest organization of education employees in this state. The governor shall appoint the member representing the interests of organized labor from a list of three names submitted by the state's largest organization representing labor affiliates. The three four members appointed from the public shall each have experience in the financing, development or management of employee benefit programs. All new appointments made after the first day of July, one thousand nine hundred ninety- four, shall be selected to represent the different geographical areas within the state and all members shall be residents of West Virginia. No member may be removed from office by the governor except for official misconduct, incompetence, neglect of duty, neglect of fiduciary duty or other specific responsibility imposed by this article, or gross immorality.

(c) The director commissioner of the employee and insurance services division shall serve as chairperson chair of the finance board, which shall meet at times and places specified by the call of the director chair or upon the written request to the director chair of at least two members. The director of the public employees insurance agency shall serve as staff to the board. Notice of each meeting shall be given in writing to each member by the director at least three days in advance of the meeting. Four Five members constitutes constitute a quorum. The board shall pay each member the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties, as recommended by the citizens legislative compensation commission and authorized by law for each day or portion of a day engaged in the discharge of official duties.

(d) Pursuant to the provisions of article ten, chapter four of this code, the finance board shall terminate on the first day of July, two thousand three, unless extended by legislation enacted before the termination date.

(e) (d) Upon termination of the board and notwithstanding any provisions in this article to the contrary, the director is authorized to assess monthly employee premium contributions and to change the types and levels of costs to employees only in accordance with this subsection. Any assessments or changes in costs imposed pursuant to this subsection shall be implemented by legislative rule proposed by the director for promulgation pursuant to the provisions of article three, chapter twenty-nine-a of this code; any employee assessments or costs previously authorized by the finance board shall then remain in effect until amended by rule of the director promulgated pursuant to this subsection.
§5-16-4a. Continuation of the public employees insurance agency finance board.


The public employees insurance agency finance board shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand five, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.


CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 1. DEPARTMENT OF ADMINISTRATION.
§5A-1-2. Department of administration and office of secretary; secretary; divisions; directors.

(a) The department of administration and the office of secretary of administration are hereby continued in the executive branch of state government. The secretary shall be the chief executive officer of the department and director of the budget and shall be appointed by the governor, by and with the advice and consent of the Senate, for a term not exceeding the term of the governor. The office of the commissioner of finance and administration and the division of finance and administration are hereby abolished. All duties and responsibilities of the commissioner of finance and administration are hereby vested in the secretary of administration. All records, responsibilities, obligations, assets and property, of whatever kind and character, of the division of finance and administration are hereby transferred to the department of administration. The balances of all funds of the division of finance and administration are hereby transferred to the department of administration.

(b) The department of administration is hereby authorized to receive federal funds.

(c) The secretary shall serve at the will and pleasure of the governor. The annual compensation of the secretary shall be as specified in section three, article one, chapter five-f of this code.

(d) There shall be in the department of administration a finance division, a general services division, an information services and communications division, an employee and insurance services and retirement division, a personnel division and a purchasing division. The insurance and retirement division shall be comprised of the public employees retirement system and board of trustees, the public employees insurance agency and public employees advisory board, the teachers retirement system and teachers' retirement board, and the board of risk and insurance management. Each division shall be headed by a director who may also head any and all sections within that division and who shall be appointed by the secretary, except that the commissioner of the employee and insurance services division shall be appointed by the governor with the advice and consent of the Senate as provided in article ten of this chapter. In addition to the divisions enumerated above, there shall also be in the department of administration those agencies, boards, commissions and councils specified in section one, article two, chapter five-f of this code.
ARTICLE 10. Employee and insurance services division.
§5A-10-1. Division created; purpose and functions; cooperation.

(a) There is hereby created within the department of administration an employee and insurance services division. The following agencies of the department of administration are hereby incorporated within the employee and insurance services division:

(1) The consolidated public retirement board provided for in article ten-d, chapter five of this code and the retirement programs administered thereunder;

(2) The public employees insurance agency and associated boards provided for in article sixteen, chapter five of this code;

(3) The division of personnel provided for in article six, chapter twenty-nine of this code;

(4) The board of risk and insurance management provided for in article twelve, chapter twenty- nine of this code.

(5) The children's health insurance agency and associated boards provided for in article sixteen-b, chapter five of this code; and

(6) The education and state employees grievance board provided for in article six-a, chapter twenty-nine of this code.

(b) The purpose and function of the division of employee and insurance services is to preserve the integrity of a system of personnel administration for state agencies based on merit principles; to provide to the state employees who are stakeholders fairness, confidence and security in the administration of state insurance and retirement benefit plans; to provide for long-term fiscal security and enhance the state's ability to assure its fiscal obligations under its insurance, risk and benefit plans; to promote loss control in state programs and agencies; and to coordinate and consolidate technical functions of the component agencies while preserving inviolate their separate trust responsibilities.

(c) The director of the purchasing division and the chief technology officer within the office of the governor shall cooperate and provide assistance in the consolidation, reorganization and integration of functions of the division and its component agencies and programs, and shall expedite all reasonable requests in order to assure efficient and adequate systems support.

(d) Any agency or board incorporated into the division pursuant to subsection (a) of this section which disagrees with an action of the commissioner may refer the disagreement to the secretary for review.
§5A-10-2. Creation of office of commissioner of the employee and insurance services division; qualifications; powers and duties.


(a) The office of commissioner of the employee and insurance services division is hereby created. On the effective date of this section, the director of the former insurance and retirement division shall serve as acting commissioner of the employee and insurance services division and shall immediately assume the duties of the office. Not later than the thirtieth day of January, two thousand five, the governor shall appoint the commissioner with the advice and consent of the Senate, to serve at the will and pleasure of the governor, at a salary to be established by the Governor. The commissioner shall have knowledge in the areas of self-insured risk pools and employee benefit program administration, knowledge of the special trust requirements of benefit programs with respect to stakeholders, and an understanding of the special demands upon government with respect to budgetary constraints, the protection of public funds, and federal and state standards of accountability.

(b) The commissioner shall have the power, duty and authority to:

(1) Coordinate overall policy within the division;

(2) Propose comprehensive budgets for consideration by the secretary of the department of administration and the governor;

(3) Develop and provide to the governor, the speaker of the House and the president of the Senate, on an annual basis, long-range financial forecasts for the insurance and benefit programs administered by the division, which forecasts shall include cash-flow projections for future budget years, based on known facts and reasonable, clearly stated actuarial assumptions;

(4) Interact with stakeholders, staff of the component agencies and outside agencies to develop long-term strategies for delivering quality services, reducing unfunded liabilities, and assuring the fiscal viability of programs;

(5) Propose and provide to the governor, the speaker of the House and the president of the Senate, on an annual basis, long-term strategic plans to provide for the fiscal security of the programs administered by the agencies within the division and minimize the fiscal burden upon limited state resources;

(6) Employ and discharge, with the approval of the secretary of the department of administration, employees within the office of the commissioner, to serve at the will and pleasure of the commissioner;

(7) Eliminate or consolidate positions, with the approval of the secretary of the department of administration, other than positions of administrators or positions of board members, and name a person to fill more than one position;

(8) Delegate, assign, transfer or combine responsibilities or duties to or among employees, other than administrators or board members;

(9) Reorganize internal functions or operations;

(10) Transfer within the division, with the approval of the secretary of the department of administration, funds appropriated to the various agencies of the division: Provided, That no funds may be transferred from a claims payment account, retiree benefit account, trust account or any other account or funds specifically exempted by the Legislature from transfer: Provided, however, That authority to transfer funds pursuant to this section shall expire on the thirtieth day of June, two thousand five;

(11) Enter into contracts or agreements requiring the expenditure of public funds, and authorize the expenditure or obligating of public funds as authorized by law;

(12) Acquire by lease or purchase property of whatever kind or character, and convey or dispose of any property of whatever kind or character as authorized by law;

(13) Conduct internal audits;

(14) Supervise internal management;

(15) Recommend to the secretary the promulgation of rules to implement and make effective the powers, authority and duties granted and imposed by the provisions of this article, which rules, unless specifically exempted in accordance with the provisions of this code, shall be proposed in accordance with the provisions of chapter twenty-nine-a of this code;

(16) Delegate duties to administrators in order to facilitate execution of the powers, authority and duties of the commissioner;

(17) Consolidate data, accounting and claims administration systems and propose to the secretary of the department of administration the termination or renegotiation of contracts;

(18) Take any other action involving or relating to internal management not otherwise prohibited by law;

(19) With approval of the secretary of the department of administration, assess all agencies within the employee and insurance services division a reasonable amount to cover the costs of the division; and

(20) Promote combined purchasing of components within the division.

(c) The commissioner shall work cooperatively with the consolidated public retirement board and the public employees insurance agency to acquire and implement combined data systems for the retirement and health plans administered by the consolidated public retirement board and the public employees insurance agency. Beginning on the first day of January, two thousand five, and continuing until such time as the combined data system is fully implemented, the commissioner shall provide to the joint committee on government and finance, or such other committee as the Legislature directs, monthly updates on the development and implementation of the system.

(d) Nothing contained in this section may be construed to limit the powers of the secretary of the department of administration pursuant to chapter five-f of this code, or to enlarge the power and authority granted to any agency or administrator within the division. Nothing contained in this section may be construed to limit the rights of any beneficiary of a retirement or benefit program arising by operation of law or any trust instrument. No power granted to the commissioner may be exercised if to do so would violate or be inconsistent with the separate fiduciary responsibilities with respect to the respective funds under the commissioners' authority, or with the provisions of any federal law or regulation, any federal-state program or federally delegated program, or jeopardize the approval, existence or funding of any such program. The powers granted to the commissioner to enter into contracts or agreements and to make expenditures or obligations of public funds under this provision may not exceed or be interpreted as authority to exceed the powers heretofore granted by the Legislature to the various administrators or board members of the various agencies or boards that comprise and are incorporated into the division. Nothing contained in this section may be construed to limit the rights of employees within the classified service of the state as provided in subsection (d), section two, article two, chapter five-f of this code.
§5A-10-3. Continuation of division.

The division of employee and insurance services and the office of commissioner of the division of employee and insurance services shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand five, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.


CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 6. CIVIL SERVICE COMMISSION.

29-6-5. Division of personnel continued; sections.

(a) Effective the first day of July, one thousand nine hundred eighty-nine, there is hereby created a The division of personnel is continued within the executive branch employee and insurance services division of the department of administration.

(b) The division of personnel shall consist of perform the following sections functions:

(1) Applicant services;

(2) Classification and compensation;

(3) Management development and training;

(4) Program evaluation and payroll;

(5) Employee services;

(6) Employee relations; and

(7) Administrative and staff services.
(c) The commissioner of the employee and insurance services division shall establish such sections of the division as may be necessary to carry out the functions of the division and the purposes of this article. Each section shall be under the control of a section chief to be appointed by the director who shall be qualified by reason of exceptional training and experience in the field of activities of the respective section. The director has authority to establish such additional sections as may be determined necessary to carry out the purpose of this article.
§29-6-6. State personnel board continued; members; term; quorum; vacancies; powers and duties.


(a) There is hereby created continued within the division a state personnel board which shall consist of consists of the commissioner of the employee and insurance services division or his or her designee, who shall serve as an ex officio member and five members appointed by the governor with the advice and consent of the Senate for terms of four years and until the appointment of their successors. The commissioner of the employee and insurance services division may not vote on any question before the board except in cases of a tie. Provided, That of the members first appointed, one shall be appointed for a term of one year, one for two years, one for three years, and one for four years. No more than three four members may be of the same political party. Three Four members of the board constitute a quorum.

(b) A member of the board may not be removed from office except for official misconduct, incompetence, neglect of duty, gross immorality or malfeasance, and then only in the manner prescribed in article six, chapter six of this code for the removal by the governor of state elected officers.

(c) Citizen members of the board shall each be paid one hundred dollars for each day devoted to the work of the board. Each member shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of his or her duties, except that in the event the expenses are paid, or are to be paid, by a third party, the members shall not be reimbursed by the state.

(d) The commissioner of the employee and insurance services division of the department of administration or their designee shall serve as chair of the board. The board shall elect one of its members as chairperson and shall meet at such time and place as shall be specified by the call of the chairman chair. At least one meeting shall be held in each month. All meetings shall be open to the public. Notice of each meeting shall be given in writing to each member by the director at least three days in advance of the meeting period.

(e) In addition to other powers and duties invested in it by this article or by any other law, the board shall:

(1) Promulgate rules in accordance with chapter twenty-nine-a of this code to implement the provisions of this article;

(2) Interpret the application of this article to any public body or entity;

(3) Authorize and conduct such studies, inquiries, investigations or hearings in the operation of this article as it deems necessary.

(f) The director or the board may subpoena and require the attendance of witnesses in the production of evidence or documents relevant to any proceeding under this article."

Having been engrossed, the bill was then read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 363), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Louisos.

Absent And Not Voting: Coleman, Warner and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4008) passed.

An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:

H. B. 4008 - "A Bill to amend and reenact §5-10D-1, §5-10D-2 and §5-10D-3 of the code of West Virginia, 1931, as amended; to amend and reenact §5-16-3 and §5-16-4 of said code; to amend said code by adding thereto a new section, designated §5-16-4a; to amend and reenact §5A-1-2 of said code; to amend said code by adding thereto a new article, designated §5A-10-1, §5A-10-2 and §5A-10- 3; and to amend and reenact §29-6-5 and §29-6-6 of said code, all relating to creating a new employee and insurance services division within the department of administration and revising the law governing its component agencies and boards; providing that the division incorporate the consolidated public retirement board, the public employees insurance agency, the board of risk and insurance management, the children's health insurance agency, the education and state employees grievance board and the personnel division; creating the office of commissioner of the division; providing for the powers and duties of the commissioner; authorizing the commissioner to consolidate or reorganize certain internal functions and operations, transfer funds within the agencies and assess agencies with costs; providing that the commissioner chair certain boards and appoint directors of component state agencies within the division; providing for sunset review of division and office of commissioner; removing requirement of nonparticipation in state retirement program for attorney hired to work with the consolidated public retirement board; authorizing compensation and expenses for board members; establishing employment requirements for director of public employees insurance agency; and adding members to public employees insurance agency finance board."

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 364), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Louisos.

Absent And Not Voting: Coleman, Warner and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4008) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4059, Distributing net terminal income of racetrack video lottery terminals from reduced distributions to the tourism development fund ; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.

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

"That §29-22A-10 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide communications protocol data; distribution of net terminal income; remittance through electronic transfer of funds; establishment of accounts and nonpayment penalties; commission control of accounting for net terminal income; settlement of accounts; manual reporting and payment may be required; request for reports; examination of accounts and records.

(a) The commission shall provide to manufacturers, or applicants applying for a manufacturer's permit, the protocol documentation data necessary to enable the respective manufacturer's video lottery terminals to communicate with the commission's central computer for transmitting auditing program information and for activation and disabling of video lottery terminals.
(b) The gross terminal income of a licensed racetrack shall be remitted to the commission through the electronic transfer of funds. Licensed racetracks shall furnish to the commission all information and bank authorizations required to facilitate the timely transfer of moneys to the commission. Licensed racetracks must provide the commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds. From the gross terminal income remitted by the licensee to the commission, the commission shall deduct an amount sufficient to reimburse the commission for its actual costs and expenses incurred in administering racetrack video lottery at the licensed racetrack, and the resulting amount after the deduction is the net terminal income. The amount deducted for administrative costs and expenses of the commission may not exceed four percent of gross terminal income: Provided, That any amounts deducted by the commission for its actual costs and expenses that exceeds its actual costs and expenses shall be deposited into the state lottery fund. For all fiscal years beginning on or after the first day of July, two thousand one, the commission shall not receive an amount of gross terminal income in excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, but four percent of any amount of gross terminal income received in excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, shall be deposited into the fund established in section eighteen-a, article twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this subsection. For all fiscal years beginning on or after the first day of July, two thousand one, any amount of net terminal income received in excess of the amount of net terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, shall be divided as set out in section ten-b of this article. The licensed racetrack's share is in lieu of all lottery agent commissions and is considered to cover all costs and expenses required to be expended by the licensed racetrack in connection with video lottery operations. The division shall be made as follows:
(1) The commission shall receive thirty percent of net terminal income, which shall be paid into the state lottery fund as provided in section ten-a of this article.
(2) Fourteen percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee, and used for payment of regular purses in addition to other amounts provided for in article twenty-three, chapter nineteen of this code;
(3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:
(A) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any amount in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack is located that has participated in the West Virginia thoroughbred development fund since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty percent of the excess amount, the fifty percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any amount in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the excess amount; and
(C) This proviso shall not affect the amount to be received under this subdivision by any county other than a county described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all employees of the licensed racing association by making a deposit into a special fund to be established by the racing commission to be used for payment into the pension plan for all employees of the licensed racing association;
(5) The West Virginia thoroughbred development fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding development fund created under section ten, article twenty-three, chapter nineteen of this code shall receive an equal share of a total of not less than one and one-half percent of the net terminal income: Provided, That for any racetrack which does not have a breeder's program supported by the thoroughbred development fund or the greyhound breeding development fund, the one and one-half percent provided for in this subdivision shall be deposited in the special fund established by the licensee and used for payment of regular purses, in addition to other amounts provided for in subdivision (2) of this subsection and article twenty-three, chapter nineteen of this code;
(6) The West Virginia racing commission shall receive one percent of the net terminal income which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter nineteen of this code;
(7) A licensee shall receive forty-seven percent of net terminal income;
(8) The tourism promotion fund established in section twelve, article two, chapter five-b of this code shall receive three percent of the net terminal income; and
(9) The veterans memorial program shall receive one percent of the net terminal income until sufficient moneys have been received to complete the veterans memorial on the grounds of the state capitol complex in Charleston, West Virginia. The moneys shall be deposited in the state treasury in the division of culture and history special fund created under section three, article one-i, chapter twenty- nine of this code: Provided, That only after sufficient moneys have been deposited in the fund to complete the veterans memorial and to pay in full the annual bonded indebtedness on the veterans memorial, not more than twenty thousand dollars of the one percent of net terminal income provided for in this subdivision shall be deposited into a special revenue fund in the state treasury, to be known as the 'John F. "Jack" Bennett Fund.' The moneys in this fund shall be expended by the division of veterans affairs to provide for the placement of markers for the graves of veterans in perpetual cemeteries in this state. The division of veterans affairs shall promulgate legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code specifying the manner in which the funds are spent, determine the ability of the surviving spouse to pay for the placement of the marker, and setting forth the standards to be used to determine the priority in which the veterans grave markers will be placed in the event that there are not sufficient funds to complete the placement of veterans grave markers in any one year, or at all. Upon payment in full of the bonded indebtedness on the veterans memorial, one hundred thousand dollars of the one percent of net terminal income provided for in this subdivision shall be deposited in the special fund in the division of culture and history created under section three, article one-i, chapter twenty-nine of this code and be expended by the division of culture and history to establish a West Virginia veterans memorial archives within the cultural center to serve as a repository for the documents and records pertaining to the veterans memorial, to restore and maintain the monuments and memorial on the capitol grounds: Provided, however, That five hundred thousand dollars of the one percent of net terminal income shall be deposited in the state treasury in a special fund of the department of administration, created under section five, article four, chapter five-a of this code to be used for construction and maintenance of a parking garage on the state capitol complex: Provided further, That the remainder of the one percent of net terminal income shall be deposited in equal amounts in the capitol dome and improvements fund created under section two, article four, chapter five-a of this code and cultural facilities and capitol resources matching grant program fund created under section three, article one of this chapter until a total of one million is deposited into the cultural facilities and capitol resources matching grant program fund, and thereafter, the remaining amounts collected shall be deposited into the capitol dome and improvements fund.
(d) Each licensed racetrack shall maintain in its account an amount equal to or greater than the gross terminal income from its operation of video lottery machines, to be electronically transferred by the commission on dates established by the commission. Upon a licensed racetrack's failure to maintain this balance, the commission may disable all of a licensed racetrack's video lottery terminals until full payment of all amounts due is made. Interest shall accrue on any unpaid balance at a rate consistent with the amount charged for state income tax delinquency under chapter eleven of this code. The interest shall begin to accrue on the date payment is due to the commission.
(e) The commission's central control computer shall keep accurate records of all income generated by each video lottery terminal. The commission shall prepare and mail to the licensed racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery terminals. Each licensed racetrack shall report to the commission any discrepancies between the commission's statement and each terminal's mechanical and electronic meter readings. The licensed racetrack is solely responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the commission may make no credit adjustments. For any video lottery terminal reflecting a discrepancy, the licensed racetrack shall submit to the commission the maintenance log which includes current mechanical meter readings and the audit ticket which contains electronic meter readings generated by the terminal's software. If the meter readings and the commission's records cannot be reconciled, final disposition of the matter shall be determined by the commission. Any accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the commission.
(g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is not operational or the commission notifies licensed racetracks that remittance by this method is required. The licensed racetracks shall report an amount equal to the total amount of cash inserted into each video lottery terminal operated by a licensee, minus the total value of game credits which are cleared from the video lottery terminal in exchange for winning redemption tickets, and remit the amount as generated from its terminals during the reporting period. The remittance shall be sealed in a properly addressed and stamped envelope and deposited in the United States mail no later than noon on the day when the payment would otherwise be completed through electronic funds transfer.
(h) Licensed racetracks may, upon request, receive additional reports of play transactions for their respective video lottery terminals and other marketing information not considered confidential by the commission. The commission may charge a reasonable fee for the cost of producing and mailing any report other than the billing statements.
(i) The commission has the right to examine all accounts, bank accounts, financial statements and records in a licensed racetrack's possession, under its control or in which it has an interest and the licensed racetrack shall authorize all third parties in possession or in control of the accounts or records to allow examination of any of those accounts or records by the commission."
Delegates Hamilton and Ellem moved to amend the Committee amendment on page four, section ten, line nineteen, by striking out the words "half of one".
And,
On page five, section ten, line sixteen, by striking out the words "forty-seven" and inserting in lieu thereof the words "forty-six and one half".
On the adoption of the amendment to the Committee amendment, Delegate Hamilton demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 365), and there were--yeas 56, nays 42, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Amores, Beach, Beane, Brown, Campbell, Cann, Craig, Crosier, Doyle, Ennis, Frederick, Hartman, Hatfield, Houston, Kominar, Leach, Long, Mahan, Mezzatesta, Michael, Morgan, Perry, Pethtel, Pino, Proudfoot, Renner, Shelton, Stalnaker, Staton, Stemple, Swartzmiller, Tabb, Talbott, R. M. Thompson, Varner, Wakim, Warner, Webster, G. White, H. White, Williams and Mr. Speaker, Mr. Kiss .
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the amendment to the amendment was adopted.
The question now before the House being on the adoption of the Committee amendment, as amended, the same was put and prevailed.
Having been engrossed, the bill was then read a third time.
Delegate DeLong requested to be excused from voting on the passage of H. B. 4059 under the provisions of House Rule 49, stating that this bill could possibly affect the money going into his pension.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he had demonstrated no direct personal or pecuniary interest therein.
At 2:50 p.m., on motion of Delegate Staton, the House of Delegates recessed for twenty minutes and reconvened at that time.
At the request of Delegate Staton, and by unanimous consent, H. B. 4059 was laid at the foot of bills on third reading, Special Calendar.
H. J. R. 114, Veterans Bonus Amendment of 2004; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
On motion of Delegate Michael, the resolution was amended on page four, line forty-four, after the word "hereinabove" and the period, by inserting the following:
"In the case of the Iraqi War and the conflict in Afghanistan, the amount of bonus shall be four hundred dollars per eligible veteran who was in active service outside the combat zone designated by the President or Congress of the United States during the dates specified hereinabove."
Having been engrossed, the resolution was then read a third time.
On the adoption of the resolution, the yeas and nays were taken (Roll No. 366), 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, Duke and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the resolution (H. J. R. 114) adopted, as follows:
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2323, Establishing a division of school personnel within the state department of education; on third 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 bills on third reading, Special Calendar.
Com. Sub. for H. B. 2706, Relating to compensation paid to members of the education and state employees grievance board; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 367), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Frich.
Absent And Not Voting: Coleman, Duke and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2706) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2728, Allowing a person to erect, construct, repair or alter their residential property without a contractor's license or having a contractor perform the work; on third 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 bills on third reading, Special Calendar.
H. B. 2912, Providing that certain education personnel who are former state employees may exercise the option to transfer from the public employees retirement system to the state teachers retirement system; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.

An amendment, recommended by the Committee on Pensions and Retirement, was reported by the Clerk and adopted, amending the bill by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-7. Participation in teachers' defined contribution retirement system; limiting participation in existing teachers retirement system.

(a) Beginning the first day of July, one thousand nine hundred ninety-one, and except as provided for in this section, the teachers' defined contribution system shall be the single retirement program for all new employees whose employment commences on or after that date. No additional new employees except as may be provided for in this section may be admitted to the existing teachers retirement system.
(b) Members of the existing teachers retirement system whose employment continues beyond the first day of July, one thousand nine hundred ninety-one, and those whose employment was terminated after the thirtieth day of June, one thousand nine hundred ninety-one, under a reduction in force are not affected by subsection (a) of this section and shall continue to contribute to and participate in the existing teachers retirement system without a change in plan provisions or benefits.
(c) Any person who was previously a member of the teachers retirement system and who left participating employment before the creation of the defined contribution system on the first day of July, one thousand nine hundred ninety-one, and who later returned to participating employment after the effective date of this section has the right to elect to return to the existing teachers retirement system or to elect to participate in the defined contribution system. The election shall be made at the time of his or her reemployment, is irrevocable and shall be made upon forms approved by and filed with the West Virginia consolidated public retirement board.
(d) Any person who was, prior to the first day of July, one thousand nine hundred ninety-one, a member of the existing teachers retirement system who left participating employment before the creation of the teachers' defined contribution system on the first day of July, one thousand nine hundred ninety-one, and who later returned to participating employment after that date and who was precluded from returning to the existing teachers retirement system as a result of prior provisions of this section, may elect, pursuant to the provisions of this section, readmission to the existing teachers retirement system: Provided, That persons who are eligible to, and who make the election to, terminate their participation in the defined contribution system and to return to participation in the existing teachers retirement system as provided for in this section shall make the election, on a form approved by and filed with the West Virginia consolidated public retirement board on or before the thirtieth day of June, two thousand two: Provided, however, That as a condition of the right of readmission to the existing teachers retirement system, persons making the election provided for in this section whose defined contribution account had not, prior to such election, been divided by a qualified domestic relations order, shall pay an additional contribution to the existing teachers retirement system equal to one and one-half percent of his or her annual gross compensation earned for each year during which he or she participated in the defined contribution system and shall consent and agree to the transfer of his or her total account balance in the defined contribution system as of the most recent plan valuation immediately preceding his or her transfer to the existing teachers retirement system. For persons making the election provided for in this section whose defined contribution account had, prior to such election, previously been divided by a qualified domestic relations order, the cost to such person to transfer to the existing teachers retirement system shall be actuarially determined by the consolidated public retirement board. Upon verification of that person's eligibility to return to participation in the existing teachers retirement system and the tender and transfer of funds as provided for in this subsection, persons making this election shall receive service credit for the time the member participated in the defined contribution system as if his or her participation had been in the existing teachers retirement system: Provided further, That the right to terminate participation in the defined contribution system and to resume participation in the existing teachers retirement system as provided for in this section is irrevocable and shall not apply to any person who, while members of the teachers retirement system, voluntarily elected to terminate his or her membership in the teachers retirement system and to become a participant in the defined contribution system pursuant to section eight of this article.
(e) Any employee whose employment with an employer was suspended or terminated while he or she served as an officer with a statewide professional teaching association is eligible for readmission to the existing retirement system in which he or she was a member.
(f) An employee whose employment with an employer or an existing employer is suspended as a result of an approved leave of absence, approved maternity or paternity break in service or any other approved break in service authorized by the board is eligible for readmission to the existing retirement system in which he or she was a member.
(g) In all cases in which a question exists as to the right of an employee to readmission to membership in the existing teachers retirement system, the consolidated public retirement board shall decide the question.
(h) Any individual who is not a 'member' or 'employee' as defined by section two of this article and any individual who is a leased employee is not eligible to participate in the teachers' defined contribution system. For purposes of this section, a 'leased' employee means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. In all cases in which a question exists as to whether an individual is eligible for membership in this system, the consolidated public retirement board shall decide the question.
(i) Any person who was, prior to the first day of July, one thousand nine hundred ninety-one, a participating member of the West Virginia public employees retirement system and who after the first day of July, one thousand nine hundred ninety-one, became a participating member of the teachers' defined contribution retirement system as a result of prior provisions of this section, may elect, pursuant to the provisions of this section, admission to the existing teachers' retirement system: Provided, That persons who are eligible to, and who make the election to terminate their participation in the defined contribution system and to participate in the existing teachers retirement system, as provided for in this section, shall make the election on a form approved by and filed with the West Virginia consolidated public retirement board on or before the thirteenth day of June, two thousand four: Provided, however, That as a condition of the right of admission to the existing teachers retirement system, persons who make the election provided for in this section, whose defined contribution account had not, prior to such election, been divided by a qualified domestic relations order, shall pay into the state teachers retirement system one and one-half of one percent of the member's salary as of the thirtieth day of June, two thousand four, multiplied by the number of years the member transferred from the defined contribution plan into the state teachers retirement system. They shall, additionally, consent and agree to the transfer of their total account balance in the defined contribution system, as of the most recent plan evaluation, immediately preceding their transfer to the existing teachers retirement system. For persons making the election provided for in this section, whose defined contribution account had, prior to making the election, previously been divided by a qualified domestic relations order, the cost to the person to transfer to the existing teachers retirement system shall be determined by the consolidated public retirement board. Upon verification of that person's eligibility to participate in the existing teachers retirement system and on the tender and transfer of funds as provided for in this subsection, persons making this election shall receive service credit for the time the member participated in the defined contribution system as if his or her participation had been in the existing teachers retirement system: Provided further, That the right to terminate participation in the defined contribution system and to participate in the existing teachers retirement system, as provided for in this section, is irrevocable."
Having been engrossed, the bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 368), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2912) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2950, Modernizing captive insurance law to remain competitive with states which presently contract such business; on third 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 bills on third reading, Special Calendar.
Com. Sub. for H. B. 3106, Defining, developing and regulating the keeping of privately owned deer as an agricultural enterprise in this state; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 369), and there were--yeas 83, nays 14, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Brown, Butcher, Caputo, Ferrell, Fragale, Hatfield, Hrutkay, Iaquinta, Manchin, Martin, Susman, R. Thompson, Wright and Yost.
Absent And Not Voting: Coleman, Craig and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. H. B. 3106) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 3118, Increasing the salary of public service district board members; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 370), and there were--yeas 92, nays 6, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Ellem, Sobonya, Sumner, Susman and Webb.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3118) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4003, Adjusting the age for members of the West Virginia state police retirement system; on third 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 bills on third reading, Special Calendar.
Com. Sub. for H. B. 4018, Authorizing the issuance of grant waivers to sparsely populated counties for relief from the ratio limitations on state funding of professional educators; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 371), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Frich.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4018) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4033, Authorizing the issuance of new parkway revenue bonds; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
On motion of Mr. Speaker, Mr. Kiss, and Delegate Michael, the bill was amended by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §17-16A-11 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 16A. WEST VIRGINIA PARKWAYS, ECONOMIC DEVELOPMENT AND TOURISM AUTHORITY.

§17-16A-11. Parkway revenue bonds - West Virginia Turnpike; related projects.

(a) The parkways authority is hereby authorized to provide by resolution, at one time or from time to time, for the issuance of parkway revenue bonds of the state in an aggregate outstanding principal amount not to exceed from time to time two hundred eighty-three million dollars for the purpose of paying: (i) All or any part of the cost of the West Virginia turnpike, which cost may include, but not be limited to, an amount equal to the state funds used to upgrade the West Virginia turnpike to federal interstate standards; (ii) all or any part of the cost of any one or more parkway projects that involve improvements to or enhancements of the West Virginia turnpike including, without limitation, lane-widening on the West Virginia turnpike and that are or have been recommended by the parkways authority's traffic engineers or consulting engineers or by both of them prior to the issuance of parkway revenue bonds for such project or projects; and (iii) to the extent permitted by federal law, all or any part of the cost of any related parkway project. For purposes of this section eleven only, a "related parkway project" means any information center, visitors' center or rest stop, or any combination thereof, and any expressway, turnpike, trunkline, feeder road, state local service road or park and forest road which connects to or intersects with the West Virginia turnpike and is located within seventy-five miles of said turnpike as it exists on the first day of June, one thousand nine hundred eighty-nine, or any subsequent expressway, trunkline, feeder road, state local service road or park and forest road constructed pursuant to this article: Provided, That nothing herein shall be construed as prohibiting the parkways authority from issuing parkway revenue bonds pursuant to section ten of this article for the purpose of paying all or any part of the cost of any such related parkway project: Provided, however, That none of the proceeds of the issuance of parkway revenue bonds under this section shall be used to pay all or any part of the cost of any economic development project, except as provided in section twenty-three of this article: Provided further, That nothing herein shall be construed as prohibiting the parkways authority from issuing additional parkway revenue bonds to the extent permitted by applicable federal law for the purpose of constructing, maintaining and operating any highway constructed in whole or in part with money obtained from the Appalachian regional commission so long as said highway connects to the West Virginia turnpike as it existed as of the first day of June, one thousand nine hundred eighty-nine: And provided further, That for purposes of this section, in determining the amount of bonds outstanding from time to time within the meaning of this section: Original par amount or original stated principal amount at the time of issuance of bonds shall be used to determine the principal amount of bonds outstanding, except that the amount of parkway revenue bonds outstanding under this section may not include any bonds that have been retired through payment, defeased through the deposit of funds irrevocably set aside for payment, or otherwise refunded so that they are no longer secured by toll revenues of the West Virginia turnpike: And provided further, That the authorization to issue bonds under this section shall be in addition to authorization and power to issue bonds under any other section of the West Virginia code: And provided further, That, without limitation of the authorized purposes for which parkway revenue bonds are otherwise permitted to be issued under this section, and without increasing the maximum principal par amount of parkway revenue bonds permitted to be outstanding from time to time under this section, the authority is specifically authorized by this section to issue, at one time or from time to time, by resolution or resolutions under this section, parkway revenue bonds under this section for the purpose of paying all or any part of the cost of one or more parkway projects that: (i) Consist of enhancements or improvements to the West Virginia turnpike including without limitation projects involving lane widening, resurfacing, surface replacement, bridge replacement, bridge improvements and enhancements, other bridge work, drainage system improvements and enhancements, drainage system replacements, safety improvements and enhancements, and traffic flow improvements and enhancements; and (ii) have been recommended by the authority's consulting engineers or traffic engineers, or both, prior to the issuance of such bonds. Except as otherwise specifically provided in this section, the issuance of parkway revenue bonds pursuant to this section, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties and obligations of the parkways authority in respect of the same, shall be governed by the provisions of this article insofar as the same may be applicable.
(b) Notwithstanding the provisions of subsection (a) of this section, no additional bonds authorized by the amendments to this section enacted during the regular session of the Legislature in the year two thousand four may be issued until the parkways authority has adopted by written resolution a final, irrevocable decision to fully fund and complete the construction of a Shady Spring connector and interchange connecting to the West Virginia turnpike from its toll funds or from the proceeds of bonds issued for such purpose pursuant to subsection (a) hereof, or from both, or funded in whole or in part by federal highway funds if the same are available."

Having been engrossed, the bill was then read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 372), and there were--yeas 88, nays 10, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Armstead, Ashley, Calvert, Carmichael, Duke, Howard, Louisos, Sobonya, Walters and Webb.

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4033) passed.

On motion of Mr. Speaker, Mr. Kiss, and Delegate Michael, the title of the bill was amended to read as follows:

H. B. 4033 - "A Bill to amend and reenact §17-16A-11 of the code of West Virginia, 1931, as amended, relating to authorizing the issuance of new parkway revenue bonds; establishing a two hundred million dollar ceiling on the aggregate outstanding principal amount of such parkway revenue bonds issued under such section from time to time outstanding; setting forth method of calculation of outstanding bond indebtedness; limitations; authorized expenditures of bond proceeds; specifying condition precedent to issuance of additional bonds; and limiting effect of amendments to section."

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4036, Relating to legislative appropriation of tobacco settlement funds; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
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 §4-11A-1, §4-11A-2 and §4-11A-3 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto sixteen new sections, designated §4-11A-3a, §4-11A-6, §4-11A-7, §4-11A-8, §4-11A-9, §4-11A-10, §4-11A-11, §4-11A-12, §4-11A-13, §4-11A-14, §4-11A-15, §4-11A-16, §4-11A-17, §4-11A-18, §4-11A-19, and §4-11A-20, all to read as follows:
ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT FUNDS; CREATION OF TOBACCO SETTLEMENT FINANCE AUTHORITY.

§4-11A-1. Legislative findings and purpose.


(a) On the twenty-third day of November, one thousand nine hundred ninety-eight, tobacco product manufacturers entered into a settlement agreement with the state. This 'master settlement agreement' releases those manufacturers from past, present and specific future claims against them in return for payment of annual sums of money to the state, obligates the manufacturers to change their advertising and marketing practices, and requires the establishment by the manufacturers of a national foundation for the interests of public health.

(b) The revenues received pursuant to the master settlement agreement are directly related to the past, present and future costs incurred by the state for the treatment of tobacco-related illnesses. The receipt of such revenues in the future at or above current amounts is subject to the ongoing risk of litigation against manufacturers or other events that may adversely affect the financial strength of the manufacturers. The purpose of this article is to preserve the revenues received from the settlement.

(c) The receipt of funds in accordance with the master settlement agreement shall be deposited only in accordance with the provisions of this article.

(d) West Virginia receives approximately seventy million dollars in revenue each year under the terms of the master settlement agreement with the tobacco manufacturers. The revenue is used to fund programs of vital importance to the people of West Virginia, and the Legislature finds that it is in the best interest of the people of this state to protect these revenues. Additionally the state will receive the strategic contribution funds established in the tobacco settlement fund beginning in two thousand eight and continuing through two thousand seventeen and the Legislature finds that it is in the best interest of the state to protect these revenues also.

(e) The prudent use of available moneys is necessary to supplement ongoing efforts to reduce and eliminate this threat.

(f) As a result of financial distress that occurred in the state during the 1980's, the death, disability and retirement fund of the West Virginia state police, the judges' retirement system and the teachers' retirement system each has a significant unfunded actuarial accrued liability that is being amortized over a term of years ending no later than two thousand thirty-four through annual appropriations in addition to amounts appropriated annually for the normal cost contribution to such pension systems.

(h) Providing funds to decrease the deficits in any of the retirement systems would relieve the state from ongoing financial burdens and would otherwise be beneficial to residents of the state.

(i) The sale of all or a portion of the revenues, the issuance of bonds payable from the revenues and the application of proceeds of such bonds to provide funding for programs of vital importance to the people of West Virginia is in the best interest of the people of this state,
§4-11A-2. Receipt of settlement funds and required deposit in West Virginia tobacco settlement medical trust fund.


(a) The Legislature finds and declares that certain dedicated revenues should be preserved in trust for the purpose of stabilizing the state's health related programs and delivery systems. It further finds and declares that certain of these dedicated revenues should also be preserved in trust for the purpose of educating the public about the health risks associated with tobacco usage and for the establishment of a program designed to reduce and stop the use of tobacco by the citizens of this state and in particular by teenagers.

(b) There is hereby created a special account in the state treasury, designated the "West Virginia Tobacco Settlement Medical Trust Fund", which shall be an interest-bearing account and may be invested in the manner permitted by section nine article six, chapter twelve of this code, with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement and not sold by the state pursuant to section thirteen of this article, shall be deposited in this fund. Funds paid into the account may also be derived from the following sources:

(1) All interest or return on investment accruing to the fund;

(2) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation; and

(3) Any appropriations by the Legislature which may be made for this purpose; and

(4) Any funds or accrued interest remaining in the board of risk and insurance management physicians' mutual insurance company account created pursuant to section seven, article twenty-f, chapter thirty-three of this code on or after the first day of July, two thousand four.
(c) Except as provided below, the moneys from the principal in the trust fund may not be expended for any purpose, except that on the first day of April, two thousand three, the treasurer shall transfer to the board of risk and insurance management physicians' mutual insurance company account created by section seven, article twenty-f, chapter thirty-three of this code, twenty-four million dollars from the West Virginia tobacco settlement medical trust fund for use as the initial capital and surplus of the physicians' mutual insurance company created pursuant to article twenty-f, chapter thirty-three of this code. The remaining moneys in the interest sub-account in the trust fund resulting from interest earned on the moneys in the fund and the return on investments of the moneys in the fund shall be available only upon appropriation by the Legislature as part of the state budget and expended in accordance with the provisions of section three of this article. The moneys in the interest sub-account in the trust fund resulting from interest earned on the moneys in the fund and the return on investments of the moneys in the fund shall be available only upon appropriation by the Legislature as part of the state budget and expended in accordance with the provisions of section three of this article.
§4-11A-3. Receipt of settlement funds and required deposit in the West Virginia tobacco settlement fund.


(a) There is hereby created in the state treasury a special revenue account, designated the 'Tobacco Settlement Fund', which shall be an interest bearing account and may be invested in the manner permitted by the provisions of article six, chapter twelve of this code, with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement including the strategic contribution fund and not sold by the state pursuant to section thirteen of this article, shall be deposited in this fund. These funds shall be available only upon appropriation by the Legislature as part of the state budget. Provided, That for the fiscal year two thousand, the first five million dollars received into the fund shall be transferred to the public employees insurance reserve fund created in article two, chapter five-a of this code

(b) Appropriations from the tobacco settlement fund including the strategic contribution fund are limited to expenditures for the following purposes:

(1) Reserve funds for continued support of the programs offered by the public employees insurance agency established in article sixteen, chapter five of this code;

(2) Funding for expansion of the federal state medicaid program as authorized by the Legislature or mandated by the federal government;

(3) Funding for public health programs, services and agencies; and

(4) Funding for any state owned or operated health facilities.

(c) Notwithstanding the provisions of section two, article two, chapter twelve of this code, moneys within the tobacco settlement trust fund may not be redesignated for any purpose other than those set forth in this section.
§4-11A-3a. Creation of the Tobacco Settlement Bond Proceeds Fund.

(a) There is hereby created in the state treasury a special revenue account, designated the 'Tobacco Settlement Bond Proceeds Fund', which shall be an interest bearing account and may be invested in the manner permitted by the provisions of article six, chapter twelve of this code, with the interest income a proper credit to the fund. Net proceeds derived from the sale of bonds by the tobacco settlement finance authority shall be deposited in this fund as available.

(b) Appropriations from the tobacco settlement bond proceeds fund are limited to expenditures for any of the following purposes:

(1) Payment of all or some portion the unfunded liability of the death, disability and retirement fund of the West Virginia state police, the judges' retirement system and the teachers' retirement system;

(2) Payment into the tobacco settlement medical trust fund created in section two of this article or the tobacco settlement fund created in section three of this article;

(3) Payment to the tobacco settlement expenditure fund-tobacco education program-activity nine hundred six-to be used by the secretary of health and human services for the purpose of educating the public about the health risks associated with tobacco usage and for the establishment of a program designed to reduce and prevent the use of tobacco by the citizens of the state; or

(4) Payment to the workers compensation program for purposes established by the legislature.
§4-11A-6. Creation of tobacco settlement finance authority.

(a) The tobacco settlement finance authority is hereby created and constitutes a body corporate and politic, constituting a public corporation and government instrumentality and shall not be an agency of state government and shall not be subject to administrative direction by any department, commission, board, or agency of the state. Notwithstanding the service of elected officials of state government or employees of agencies of state government on the board, the corporation shall be treated and accounted for as a separate legal entity with separate corporate purposes as set forth in this article.

(b) The purposes of the authority include all of the following:

(1) To establish a stable source of revenue to be used for the purposes designated in this article.

(2) To enter into sales agreements.

(3) To issue bonds and enter into funding options, consistent with this article, including refunding and refinancing its debt and obligations.

(4) To sell, pledge, or assign, as security or consideration, all or a portion of the state's share sold to the authority pursuant to a sales agreement, to provide for and secure the issuance and repayment of its bonds.

(5) To invest funds as provided under this article.

(6) To enter into agreements with the state for the periodic distribution of amounts due the state under any sales agreement.

(7) To refund and refinance the authority's debts and obligations, and to manage its funds, obligations and investments as necessary and if consistent with its purpose.

(8) To sell, pledge, or assign, as security or consideration, all or a portion of the state's share to implement alternative funding options.

(9) To implement the purposes of this article.

(c) The authority shall invest its funds and accounts in accordance with this chapter and shall not take action or invest in any manner that would cause the state to become a stockholder in any corporation or that would cause the state to assume or agree to pay the debt or liability of any corporation in violation of the United States constitution or the constitution of the state of West Virginia.

(d) The authority shall not create any obligation of this state or any political subdivision of this state within the meaning of any constitutional or statutory debt limitation.

(e) The authority shall not pledge the credit or taxing power of the state or any political subdivision of this state, or make its debts payable out of any moneys except those of the authority specifically pledged for their payment.

(f) Except as otherwise expressly set forth in this article, The authority shall not pledge or make its debts payable out of proceeds of its bonds.

(g) The authority shall have no other assets or property than the portion of the state's share purchased by the sales agreement, proceeds of bonds held as security for the bonds and investment income on the foregoing.

(h) The authority shall report to the Legislature its actions and intentions regarding the execution of the sales agreement and the interest rate agreement. The authority shall set forth its reasons for executing or choosing not to execute a sales agreement and interest rate agreement and the proposed terms, conditions and proposed execution date of any sales contract and interest rate agreement that the corporation intends to execute. The authority has no authority to execute a sales agreement or an interest rate agreement until a concurrent resolution of the Legislature is passed.
§4-11A-7. Definitions.

Unless the context clearly indicates otherwise, as used in this article:

(a) 'Authority' means the tobacco settlement finance authority created in this article.

(b) 'Board' means the governing board of the authority.

(c) 'Bonds' means bonds, notes, and other obligations and financing arrangements issued or entered into by the authority pursuant to this article.

(d) 'Complementary legislation' means article nine-d, chapter sixteen of this code.

(e) 'Financial institution' means a bank, trust company or credit union within or without the state.

(f) 'Interest rate agreement' means an interest rate swap or exchange agreement, an agreement establishing an interest rate floor or ceiling or both, or any similar agreement. Any such agreement may include the option to enter into or cancel the agreement or to reverse or extend the agreement.

(g) 'Master settlement agreement' means the master settlement agreement as defined in section one of this article.

(h) 'Medical trust fund' means the West Virginia medical trust fund created in section two of this article.

(i) 'Net proceeds' means the amount of proceeds remaining following each sale of bonds which are not required by the authority to establish and fund reserve funds, to fund capitalized interest, if any, and to pay the costs of issuance and other expenses and fees directly related to the authorization and issuance of bonds.

(j) 'Notes' means notes, warrants, loan agreements, and all other forms of evidence of indebtedness authorized under this article.

(k) 'Qualified investments' means investments of the authority authorized pursuant to this article.

(l) 'Qualifying statute' has the meaning given that term in the master settlement agreement, constituting article nine-b, chapter sixteen of this code.

(m) 'Sales agreement' means any agreement authorized pursuant to this article in which the state provides for the sale of all or a portion of the state's share to the authority.

(n) 'State's share' means all of the following:

(1) All payments required to be made by tobacco product manufacturers to the state, and the state's rights to receive such payments, under the master settlement agreement.

(2) To the extent that such amounts have been assigned to the state, all payments of attorney fees required to be made by tobacco product manufacturers under the master settlement agreement, and all rights to receive such attorney fees.

(o) 'Tobacco settlement fund' means the tobacco settlement fund created in section three of this article.
§4-11A-8. Powers not restricted; law complete in itself.

This article shall not restrict or limit the powers that the authority has under any other law of this state, but is cumulative as to any such powers. A proceeding, notice, or approval is not required for the creation of the authority or the issuance of obligations or an instrument as security, except as provided in this chapter.
§4-11A-9. Governing board.

(a) The powers of the authority are vested in and shall be exercised by a board of five individuals, consisting of the secretary of the department of administration, who shall act as chairperson, the treasurer of state, the executive director of the investment management board, and two individuals, each appointed by the governor, with the advice and consent of the Senate, who shall have skill and experience in finance.

(b) Three members of the board constitute a quorum.

(c) The members shall elect a vice chairperson and secretary, annually, and other officers as the members determine necessary.

(d) Meetings of the board shall be held at the call of the chairperson or when a majority of the members so request.

(e) The members of the board shall not receive compensation by reason of their membership on the board.

(f) One of the original members of the authority appointed by the governor shall serve a two- year term and one shall serve a three-year term. Thereafter, such members of the authority shall serve four-year terms. Any member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term.
§4-11A-10. Staff; assistance by state officers, agencies and departments.

(a) The staff of the office of the department of administration, under the supervision of the secretary of the department of administration shall also serve as staff of the authority.

(b) State officers, agencies and departments may render services to the authority within their respective functions, as requested by the authority.
§4-11A-11. Limitation of liability.

Members of the board and persons acting on the authority's behalf, while acting within the scope of their employment or agency, are not subject to personal liability resulting from carrying out the powers and duties conferred on them under this article.
§4-11A-12. General powers.

(a) The authority has all the general powers necessary to carry out its purposes and duties and to exercise its specific powers, including, but not limited to, all of the following powers:

(1) The power to issue its bonds and to enter into other funding options as provided in this article.

(2) The power to have perpetual succession as a public instrumentality and agency of the state, until dissolved in accordance with this article.

(3) The power to sue and be sued in its own name.

(4) The power to make and execute agreements, contracts, and other instruments, with any public or private person, in accordance with this chapter.

(5) The power to hire and compensate legal counsel, bond counsel, underwriters, consultants and advisors.

(6) The power to hire investment advisors and other persons as necessary to fulfill its purpose.

(7) The power to invest or deposit moneys in the manner permitted by section nine, article six, chapter twelve of this code.

(8) The power to procure insurance, other credit enhancements, and other financing arrangements, and to execute instruments and contracts and to enter into agreements convenient or necessary to facilitate financing arrangements of the authority and to fulfill the purposes of the authority under this article, including, but not limited to, such arrangements, instruments, contracts and agreements as municipal bond insurance, liquidity facilities, interest rate agreements and letters of credit.

(9) The power to accept appropriations, gifts, grants, loans or other aid from public or private entities.

(10) The power to adopt policies as the board determines necessary.

(11) The power to acquire, own, hold, administer, and dispose of property.

(12) The power to determine, in connection with the issuance of bonds, and subject to the sales agreement, the terms, documentation and other details of such financing.

(13) The power to perform any act not inconsistent with federal or state law necessary to carry out the purposes of the authority.
§4-11A-13. Authorization of the sale of rights in the master settlement agreement.

(a) The governor or the governor's designee may sell and assign all or a portion of the state's share to the authority pursuant to one or more sales agreements for the purpose of securitization of all or a portion of amounts received by the state under the master settlement agreement.

(b) The terms and conditions of the sale established in any sales agreement shall include the following:

(1) A requirement that the state enforce its right to collect all moneys due from the participating tobacco manufacturers pursuant to the provisions of the master settlement agreement, including, without limitation the state's share that has been sold to the authority under a sales agreement, and, in addition, that the state shall diligently enforce the qualifying statute as contemplated in section ix (d)(2)(B) of the master settlement agreement and the complementary legislation against all tobacco product manufacturers selling tobacco products in the state and that are not in compliance with the qualifying statute or the complementary legislation, in each case in the manner and to the extent deemed necessary in the judgment of the attorney general of the state.

(2) A requirement that the state not agree to any amendment of the master settlement agreement, the qualifying statute, the complementary legislation, this article or the sales agreement that materially and adversely affects the authority's ability or rights to receive the state's share that has been sold to the authority or the authority's rights and powers under this article and the sales agreement.

(3) An agreement that net proceeds will be no less than six hundred and thirty million dollars.

(4) An agreement that the anticipated use by the state of bond proceeds received pursuant to the sales agreement shall be for the purposes set forth in this article, payment of attorney fees related to the master settlement agreement, and to provide a secure and stable source of funding to the state for purposes designated by this article.

(5) A requirement that the net proceeds received by the authority from the sale of any bonds issued to provide funds for the purposes set forth in this article be paid by the authority to the state as consideration for the sale of that portion of the state's share and that such net proceeds shall be transferred to the tobacco settlement bond proceeds fund established in section three-a of this article to be used for the purposes established by this article.

(6) An agreement that the effective date of the sale is the date of receipt of the bond proceeds by the authority and the deposits of the net proceeds of the bonds in the account set forth in this article.

(c) The sale made under this section shall be irrevocable during the time when bonds are outstanding under this article, and shall be a part of the contractual obligation owed to the bondholders. The sale shall constitute and be treated as a true sale and absolute transfer of the property so transferred and not as a pledge or other security interest for any borrowing. The characterization of such a sale as an absolute transfer shall not be negated or adversely affected by the fact that only a portion of the state's share is being sold, or by the state's acquisition or retention of an ownership interest in the residual assets.

(d) On or after the effective date of such sale, the state shall not have any right, title, or interest in the portion of the state's share sold and such portion shall be the property of the authority and not the state. None of the property sold by the state pursuant to this section shall be subject to garnishment, levy, execution, attachment, or other process, writ (including writ of mandate), or remedy in connection with the assertion or enforcement of any debt, claim, settlement, or judgment against the state.

(e) On or before the effective date of the sale, the state shall notify the escrow agent under the master settlement agreement of the sale and shall irrevocably direct the escrow agent under the master settlement agreement that subsequent to that date, all payments constituting the portion sold shall be made directly to the authority or its designee.
§4-11A-14. Authorization of bonds of the authority.

(a) The authority may issue bonds and, if bonds are issued, shall make the net proceeds from the bonds available to the state pursuant to the sales agreement to be applied as set forth in section thirteen of this article and to provide a secure and stable source of funding to the state, consistent with the purposes of this article. In connection with the issuance of bonds and subject to the terms of the sales agreement, the authority shall determine the terms and other details of the financing. Bonds issued pursuant to this section may be secured by a pledge of all or a portion of the state's share purchased by the authority and any moneys derived from the state's share purchased by the authority, and any other sources available to the authority. The authority may also issue refunding bonds, including advance refunding bonds, for the purpose of refunding previously issued bonds, and may issue other types of bonds, debt obligations, and financing arrangements necessary to fulfill its purposes or the purposes of this article.

(b) The authority may issue its bonds in principal amounts which, in the opinion of the authority, are necessary to provide sufficient funds for achievement of its purposes, the payment of interest on its bonds, the establishment of reserves to secure the bonds, the costs of issuance of its bonds, and all other expenditures of the authority incident to and necessary to carry out its purposes or powers, provided, however that in no event shall costs of issuance, excluding rating agency fees, fees for bond insurance, credit enhancements and liquidity facilities, plus underwriters' discount and any other costs associated with the issuance of the bonds exceed, in the aggregate, the sum of one percent of the aggregate principal amount of bonds issued. The bonds are investment securities and negotiable instruments within the meaning of and for the purposes of the uniform commercial code.

(c) Bonds issued by the authority are payable solely and only out of the moneys, assets, or revenues pledged by the authority and are not a general obligation or indebtedness of the authority or an obligation or indebtedness of the state or any subdivision of the state. The authority shall not pledge the credit or taxing power of the state or any political subdivision of the state, or create a debt or obligation of the state, or make its debts payable out of any moneys except those of the authority.

(d) Bonds of the authority shall state on their face that they are payable both as to principal and interest solely out of the assets of the authority pledged for their purpose and do not constitute an indebtedness of the state or any political subdivision of the state; are secured solely by and payable solely from assets of the authority pledged for such purpose; constitute neither a general, legal, or moral obligation of the state or any of its political subdivisions; and that the state has no obligation or intention to satisfy any deficiency or default of any payment of the bonds.

(e) Any amount pledged by the authority to be received under any sales agreement shall be valid and binding at the time the pledge is made. Amounts so pledged and then or thereafter received by the state or the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act. The lien of any such pledge shall be valid and binding as against all parties having claims of any kind against the authority or the state, whether such parties have notice of the lien or not. Notwithstanding any other provision of law, the lien of such pledge shall not be subject to article nine of the uniform commercial code. Notwithstanding any other provision to the contrary, the resolution of the authority or any other instrument by which a pledge is created need not be recorded or filed to perfect such pledge.

(f) The proceeds of bonds issued by the authority may be invested in any security or obligation approved by the board and specified in the trust indenture or resolution pursuant to which the bonds must be issued, notwithstanding any other provision to the contrary.

(g) The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state for the improvement of their health, safety, convenience and welfare and is a public purpose. The authority, its income and all bonds and all interest and income thereon, shall be exempt from all taxation by this state and any county, municipality, political subdivision or agency thereof.

(h) Bonds of the authority shall comply with all of the following:

(1) The bonds shall be in a form, issued in denominations, executed in a manner, and payable over terms and with rights of redemption, as the board prescribes in the trust indenture or resolution authorizing their issuance.

(2) The bonds shall be fully negotiable instruments under the laws of this state and may be sold at prices, at public or private sale, and in a manner as prescribed by the board.

(3) The bonds shall be subject to the terms, conditions, and covenants providing for the payment of the principal, redemption premiums, if any, interest which may be fixed or variable during any period the bonds are outstanding, and other terms, conditions, covenants, and protective provisions safeguarding payment, not inconsistent with this chapter and as determined by the trust indenture or resolution of the board authorizing their issuance.

(i) The bonds issued under this article are securities in which insurance companies and associations and other persons engaged in the business of insurance; banks, trust companies, savings associations, savings and loan associations, and investment companies; administrators, guardians, executors, trustees, and other fiduciaries; and other persons authorized to invest in bonds or other obligations of the state may properly and legally invest funds, including capital, in their control or belonging to them.

(j) Bonds must be authorized by a resolution of the board. However, a resolution authorizing the issuance of bonds may delegate to an officer of the authority the power to negotiate and fix the details of an issue of bonds and of their sale by an appropriate certificate of the authorized officer or by execution and delivery of a trust indenture or bond purchase agreement.(k) To comply with federal law with respect to the issuance of bonds, the interest of which is tax exempt pursuant to the Internal Revenue Code, the authority may issue a certain series of bonds, or periodically issue several series of bonds, so that interest on the bonds remains exempt from federal taxation or to comply with the purposes specified in this article.

(l) In connection with the issuance of any bonds authorized and issued pursuant to this section, and in addition to the funds and accounts established elsewhere in this article, the board may, under the trust indenture or resolution pursuant to which the bonds are issued, establish such other accounts, sub- accounts or reserves as may be deemed necessary by the board.

(m) While bonds of the authority are outstanding, the state shall not agree to any amendment of the master settlement agreement, the qualifying statute, the complementary legislation, this article or the sales agreement that materially and adversely affects the authority's ability or rights to receive the state's share that has been sold to the authority or the authority's rights and powers under this article and the sales agreement.
§4-11A-15. Annual report.

(a) The authority shall submit to the governor and the Legislature on or before the thirty-first day of December, annually, a report including information regarding all of the following:
Its operations and accomplishments.

(2) Its receipts and expenditures during the previous fiscal year, in accordance with classifications it establishes for its operating and capital accounts.

(3) Its assets and liabilities at the end of the previous fiscal year and the status of reserve, special and other funds.

(4) A schedule of its bonds outstanding at the end of the previous fiscal year, and a statement of the amounts redeemed and issued during the previous fiscal year.

(5) A statement of its proposed and projected activities.

(6) Recommendations to the governor and the Legislature, as deemed necessary.

(7) Any other information deemed necessary.

(b) The annual report shall identify performance goals of the authority, and clearly indicate the extent of progress, during the reporting period, in attaining these goals.

(c) The secretary of the department of health and human resources shall submit to the governor and the Legislature, on or before the thirty-first day of December, annually, commencing with the calendar year ending the thirty-first day of December, two thousand seven, a report summarizing the use of all moneys transferred from the West Virginia tobacco settlement medical trust fund, if a transfer occurs.
§4-11A-16. Bankruptcy.

Notwithstanding any other provision of law, the authority is not authorized, and no public officer, organization, entity or other person shall authorize the authority, to become a debtor in a case under the United States bankruptcy code (title eleven of the United States code), to make an assignment for the benefit of creditors, or to become the subject of any similar case of proceeding. The provisions of this section shall be part of any contractual obligation owed to holders of any bonds issued pursuant to this article and shall not be modified by the state prior to the date which is three hundred sixty-six days after which the authority no longer has any bonds outstanding.
§4-11A-17. Dissolution of the authority; distribution of assets.

The authority shall dissolve not sooner than three hundred sixty-six days after it no longer has any bonds outstanding and no later than two years from the date of final payment of all outstanding bonds and the satisfaction of all outstanding obligations of the authority, except to the extent necessary to remain in existence to fulfill any outstanding covenants or provisions with bondholders or third parties made in accordance with this article. Upon dissolution of the authority, all assets of the authority shall be transferred to the state and fifty percent shall be deposited in the medical trust fund and fifty percent shall be deposited in the tobacco settlement fund, unless otherwise directed by the Legislature, and the authority shall execute any necessary assignments or instruments, including any assignment of any right, title, or ownership to the state for receipt of payments under the master settlement agreement. In no event shall the authority dissolve while any bonds of the authority are outstanding.
§4-11A-18. Investments generally.

Notwithstanding anything in this code to the contrary, any fund or accounts into which proceeds of bonds issued under this article are deposited may be invested in tax-exempt municipal obligations that are not subject to alternative minimum tax for federal income tax purposes. The investment permitted in this subsection is in addition to all other investments otherwise permitted for such proceeds under this code.
§4-11A-19. Severability.

If any section, subsection, subdivision, subparagraph, sentence or clause of this article is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portions of this article, and, to this end, the provisions of this article are hereby declared to be severable.
§4-11A-20. Construction.

This article, being deemed necessary for the welfare of the state and its people, shall be liberally construed to affect its purpose."

Having been engrossed, the bill was then read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 373), and there were--yeas 85, nays 11, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Border, Canterbury, Carmichael, Duke, Ellem, Faircloth, Frederick, Louisos, Schoen, Sobonya and Sumner.

Absent And Not Voting: Coleman, Kuhn, Leggett and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4036) passed.

An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:

H. B. 4036 - "A Bill to amend and reenact §4-11A-1, §4-11A-2 and §4-11A-3 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto sixteen new sections, designated §4-11A-3a, §4-11A-6, §4-11A-7, §4-11A-8, §4-11A-9, §4-11A-10, §4-11A-11, §4-11A-12, §4-11A-13, §4-11A-14, §4-11A-15, §4-11A-16, §4-11A-17, §4-11A-18, §4-11A-19 and §4-11A-20, all relating to legislative appropriation of tobacco settlement funds; setting forth legislative findings and purposes; receipt of settlement funds and required deposit in West Virginia tobacco settlement bond proceeds fund; creation of tobacco settlement finance authority and providing for general powers; requiring a concurrent resolution of the legislature prior to sale; establishing governing board of authority; defining staff of the authority; limitation of liability; providing certain definitions; authorizing sale of rights in a master settlement agreement; authorization of bonds of the authority; Providing that the net proceeds of the bond be sold for no less than six hundred and thirty million dollars; providing for the use of proceeds of bonds of the authority; providing for the delivery of an annual report by the authority to the governor; providing bankruptcy provisions; establishing the dissolution of the authority; severability of sections; and construction of article."

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 374), and there were--yeas 92, nays 5, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Carmichael, Faircloth, Schoen, Sobonya and Sumner.

Absent And Not Voting: Coleman, Kuhn and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4036) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4047, Creating a high growth business investment tax credit to encourage investment by state citizens and businesses in certain companies started by fellow West Virginians; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 375), 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, Kuhn and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4047) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4077, Eliminating the set-off against unemployment compensation benefits for persons receiving social security benefits; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 376), 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, Kuhn and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4077) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4103, Eliminating any reduction in the benefit of a state police officer who is disabled on the job when the officer attains the age of fifty-five; on third 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 bills on third reading, Special Calendar.
Com. Sub. for H. B. 4123, Authorizing the supreme court of appeals to create a panel of senior magistrate court clerks; on third 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 bills on third reading, Special Calendar.

Com. Sub. for H. B. 4167, Creating the Exotic Animal Control Board to protect the health and safety of humans and the state's agricultural and forestry industries, its wildlife and other natural resource interests from the introduction or spread of disease; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 377), and there were--yeas 91, nays 7, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Anderson, Border, Hall, Schoen, Sumner, Trump and Wakim.

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4167) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4200, Authorizing the department of military affairs and public safety to promulgate legislative rules; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 378), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4200) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 379), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4200) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4205, Authorizing the Department of Health and Human Resources to promulgate legislative rules; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 380), and there were--yeas 92, nays 6, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Ashley, Border, Hall, Perdue, Schoen and Walters.

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4205) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 381), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Beach.

Absent And Not Voting: Coleman and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4205) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4217, Authorizing the department of tax and revenue to promulgate legislative rules; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 382), and there were--yeas 93, nays 5, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Armstead, Border, Sumner, Walters and Webb.

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4217) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 383), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4217) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4284, Extending the eligibility to receive the five hundred dollar early retirement bonus for specific education personnel; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 384), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4284) passed.

Delegate Staton moved that the bill take effect July 1, 2004.

On this question, the yeas and nays were taken (Roll No. 385), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4284) takes effect July 1, 2004.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4299, Modifying the West Virginia contractor licensing act and updating certain terms; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 386), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Frich.

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4299) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4303, Relating to Gramm-Leach-Bliley and reciprocity; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 387), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4303) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4323, Adding a new administrative assistant classification to school service personnel and setting the pay grade for the position ; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
H. B. 4330, Revising the law governing vital records; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 388), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: R. Thompson and Walters.

Absent And Not Voting: Beach, Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4330) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4342, Exempting prescription drugs and insulin from the consumers sales tax when sold to patients; on third 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 bills on third reading, Special Calendar.
Com. Sub. for H. B. 4357, Permitting municipalities to impose an alternative one percent municipal sales and service tax in the municipality in lieu of imposing the business and occupation tax currently permitted by law; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 389), and there were--yeas 89, nays 8, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Armstead, Butcher, Caputo, Fragale, Louisos, Manchin, Schoen and R. Thompson.

Absent And Not Voting: Coleman, Leggett and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4357) passed.

Delegate Staton moved that the bill take effect July 1, 2004.

On this question, the yeas and nays were taken (Roll No. 390), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Louisos.

Absent And Not Voting: Coleman and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4357) takes effect July 1, 2004.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4377, Assessing a penalty on those physicians who fail to pay the special assessment; on third reading, coming up in regular order, with amendments pending, was reported by the Clerk.

Delegate Webb moved to amend the bill on page fourteen, after line seventy-nine, by striking out the remainder of the bill and inserting in lieu thereof the following:
"§33-20F-7. Initial capital and surplus; special assessment; failure to pay assessment.

(a) There is hereby created in the state treasury a special revenue account designated as the 'Board of Risk and Insurance Management Physicians' Mutual Insurance Company Account' solely for the purpose of receiving moneys transferred from the West Virginia Tobacco Medical Trust Fund pursuant to sub- section (c), section two, article eleven-a, chapter four of this code for the company's use as initial capital and surplus.

(b) On the first day of July, two thousand three, a special one-time assessment, in the amount of one thousand dollars, shall be imposed on every physician licensed by the board of medicine or by the board of osteopathy for the privilege of practicing medicine in this state: Provided, That the following physicians shall be exempt from the assessment:

(1) A faculty physician who meets the criteria for full-time faculty under subsection (f), section one, article eight, chapter eighteen-b of this code, who is a full-time employee of a school of medicine or osteopathic medicine in this state, and who does not maintain a private practice;

(2) A resident physician who is a graduate of a medical school or college of osteopathic medicine enrolled and who is participating in an accredited full-time program of post-graduate medical education in this state;

(3) A physician who has presented suitable proof that he or she is on active duty in the armed forces of the United States and who will not be reimbursed by the armed forces for the assessment;

(4) A physician who receives more than fifty percent of his or her practice income from providing services to a federally qualified health center as that term is defined in 42 U.S.C. § 1396d(l)(2); and

(5) A physician who practices solely under a special volunteer medical license authorized by section ten-a, article three or section twelve-b, article fourteen, chapter thirty of this code. The assessment is to be imposed and collected by the board of medicine and the board of osteopathy on forms prescribed by each licensing board; and
(6) A physician who is licensed on an inactive basis pursuant to subsection (b), section twelve, article three, chapter thirty of this code or section ten, article fourteen, chapter thirty, or a physician who voluntarily surrenders his license: Provided, That if a physician elects to resume an active license to practice in the state and the physician has never paid the assessment, then as a condition of receiving an active status license, the physician must pay the special one-time assessment.

(c) The entire proceeds of the special assessment collected pursuant to subsection (b) of this section shall be dedicated to the company. The board of medicine and the board of osteopathy shall promptly pay over to the company all amounts collected pursuant to this section to be used as policyholder surplus for the company.

(d) Any physician who applies to purchase insurance from the company and who has not paid the assessment pursuant to subsection (b) of this section shall pay one thousand dollars to the company as a condition of obtaining insurance from the company.

(e) A physician who fails to pay the special one-time assessment imposed on the first day of July, two thousand three, pursuant to subsection (b) of this section, on or before the thirtieth day of June, two thousand four, or when the license is due for renewal, whichever is earlier, and has received written notice of the assessment and option to elect inactive status, at least thirty days before the licensure renewal date or by the thirtieth day of May, two thousand four, notwithstanding any provision of chapter thirty to the contrary, shall have his or her license to practice medicine or podiatry suspended immediately by the board of medicine or the board of osteopathy if he or she received notice and failed to pay the special assessment by the first day of July, two thousand four. Any license to practice medicine suspended pursuant to this section shall remain suspended until the special assessment is paid in full.

(f) The requirements of subsection (b), (c), (d) and (e) of this section shall terminate on January 1, 2010, unless sooner terminated, continued or reestablished."

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

The yeas and nays having been ordered, they were taken (Roll No. 391), and there were--yeas 32, nays 66, absent and not voting 2, with the yeas and absent and not voting being as follows:

Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Calvert, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Foster, Frich, Hall, Hamilton, Howard, Leggett, Long, Louisos, Overington, Paxton, Romine, Schadler, Schoen, Sobonya, Sumner, Trump, Wakim, Walters and Webb.

Absent And Not Voting: Coleman and Yeager.

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

On motion of Delegate Amores, the bill was amended on page six, section twelve, article three, chapter thirty, line seventy-five, following the word "podiatry", by inserting the words "and who is voluntarily surrendering their license".

Having been engrossed, the bill was then read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 392), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4377) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 393), 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, Long and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4377) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4382, Authorizing the governor to appoint an additional member to the surface mining board that represents the interests of labor; on third 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 bills on third reading, Special Calendar.
Com. Sub. for H. B. 4390, Making tongue splitting a crime unless performed by a licensed physician; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 394), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4390) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4415, Giving the state auditor flexibility in determining when to conduct audits on local government offices; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 395), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Trump.

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4415) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4420, Requiring health insurance plans to cover the cost of contraceptives for their participating members; on third 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 bills on third reading, Special Calendar.
Com. Sub. for H. B. 4440, Permitting certain officers and state employees to waive their salaries; on third 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 bills on third reading, Special Calendar.
Com. Sub. for H. B. 4452, Relating to the West Virginia state police retirement system,; on third 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 bills on third reading, Special Calendar.
H. B. 4453, Relating to the deputy sheriff's retirement system; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 396), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4453) passed.

An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:

H. B. 4453 - "A Bill to amend and reenact §7-14D-2, §7-14D-5, §7-14D-7, §7-14D-12, §7- 14D-13, §7-14D-14, §7-14D-15, §7-14D-20, §7-14D-21 and §7-14D-23 of the code of West Virginia, 1931, as amended, and to further amend said code by adding thereto a new section, designated section §7-14D-24a, all relating to benefits and responsibilities in the deputy sheriffs' retirement system generally; providing for membership of certain persons not employed as a deputy when system initiated; changing method for determining contributions to the system's fund; providing for calculation of contributions required upon reemployment as deputy sheriff; removing language providing for benefits upon reaching early retirement age; changing method for calculating retirement benefits; providing right of members to name a beneficiary in certain circumstances; providing for distribution of accumulated contributions to member's estate in certain circumstances; limiting system loans to members; and providing for determining payment of benefits prior to, during and after deputy retiree returns to work as a deputy."

Delegate Staton moved that the bill take effect July 1, 2004.

On this question, the yeas and nays were taken (Roll No. 397), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4453) takes effect July 1, 2004.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4468, Allowing housing development authorities to pay for persons of eligible income the costs of preparation and recording of any title instrument, deed of trust, note or security instrument and the amount of impact fees imposed; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 398), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4468) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4474, Making it a felony offense for stealing lottery tickets; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 399), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Yeager.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4474) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4477, Increasing the issuance fees for hunting and fishing licenses; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
Com. Sub. for S. B. 500, Relating to fees for agents selling hunting and fishing licenses; on third reading, coming up in regular order, was read a third time.

Delegate Williams requested to be excused from voting on the passage of Com. Sub. for S. B. 500 under the provisions of House Rule 49, stating that he owned a franchise of licenses and that he would financially benefit from the passage of the bill.

The Speaker excused the Gentleman from voting, stating that his ownership of a franchise would result in him benefitting from the passage of the bill and that he had demonstrated a direct personal and pecuniary interest therein.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 400), and there were--yeas 87, nays 10, absent and not voting 2, excused 1, with the nays and absent and not voting being as follows:

Nays: Armstead, Calvert, Carmichael, Ellem, Frich, Stemple, Sumner, Susman, Walters and Webb.

Absent And Not Voting: Coleman and Yeager.

Excused: Williams

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 500) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4514, Mandatory treatment program for repeat or serious DUI offenders; on third reading, coming up in regular order, with an amendment pending and the restricted right to amend, was reported by the Clerk.

Delegates Amores and Michael moved to amend the bill on page one, 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 §17C-5C-1, §17C-5C-2, §17C-5C-3, §17C-5C-4, §17C-5C-5, §17C-5C-6, §17C-5C-7, §17C-5C-8, §17C-5C-9, §17C-5C-10, §17C-5C-11, §17C-5C-12, §17C-5C-13, §17C-5C-14, §17C-5C-15, §17C-5C-16, §17C-5C-17, §17C-5C-18 and §17C-5C-19, all to read as follows:
ARTICLE 5C. COURT REFERRAL FOR CERTAIN OFFENSES RELATED TO DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.

§17C-5C-1. Legislative findings and intent.
(a) The Legislature finds that a specialized system for screening, evaluating, educating, treating, monitoring and rehabilitating repeat offenders and other serious offenders arrested for offenses related to driving under the influence of alcohol, controlled substances or drugs, is required.
(b) It is therefore the intent of the Legislature to establish one or more pilot programs to promote the screening, evaluation, education, treatment, monitoring and rehabilitation of certain persons whose repeated or serious use or dependency on alcohol, controlled substances or drugs has resulted in their conviction for an offense under the provisions of section two, article five of this chapter, and to establish mandatory alcohol and drug abuse programs to provide screening, evaluation, education, treatment, monitoring and rehabilitation for these identified offenders.
§17C-5C-2. Definitions.
For the purpose of this chapter, the following terms shall have the meaning ascribed to them in this article:
(1) 'Alcohol or drug-related offenses' means all offenses related to driving under the influence of alcohol, controlled substances or drugs, as described under section two, article five of this chapter.
(2) 'Court referral program' means a pilot program established to evaluate defendants' use of alcohol, controlled substances or drugs and to promote the screening, evaluation, education, treatment, monitoring and rehabilitation of certain defendants convicted of driving under the influence of alcohol, controlled substances or drugs.
(3) 'Director' means the director of the administrative office of the supreme court of appeals.
(4) 'Driving under the influence' means driving or being in actual physical control of a motor vehicle while under the influence of alcohol, a controlled substance or drugs, as proscribed by section two, article five of this chapter, or by an offense described by a statute or ordinance of any sister state or a municipality of this state or a sister state that contains the same elements as an offense described by section two, article five of this chapter.
(5) 'Serious alcohol or drug abuse offender' means a person who:
( A) At any time prior to the time that the current offense for which the person was convicted had occurred, the convicted person had been previously convicted two or more times of driving under the influence; or
( B) At the time the current offense was committed, or within two hours thereafter, the person was tested and was found to have an alcohol concentration in his or her blood of twenty hundredths (.20) of one percent or more, by weight; or
( C) At the time the offense was committed or within two hours thereafter, the person was tested positive for a controlled substance listed on schedule I, II, or III, article two, chapter sixty-a of this code.
§17C-5C-3. Court referrals; contracts by the director of the administrative office of the supreme court of appeals; advice by circuit judges.

(a) The director of the administrative office of the supreme court of appeals is authorized to contract with individuals or entities to provide screening, evaluation, education, treatment, monitoring and rehabilitation for courts and to phase in and conduct the court referral programs in each judicial circuit of the state that is chosen to participate in a pilot program. Such appointments or contracts shall be made or entered into with the advice of the chief judge of the participating circuit court. The director shall designate the locations where the court referral programs, court referral officers or contracting entities or individuals shall serve, which designations may be changed from time to time: Provided, That all appointed court referral officers and approved court referral programs shall serve at the pleasure of the director. Any individual or entity that contracts to conduct a court referral program shall perform all the duties as set out in a policies and procedures manual for court referral programs established by the administrative office of the supreme court of appeals. Court referral officers shall work under the general supervision and direction of the director and the judge or judges of the circuit to which they are assigned. Such court referral officers shall be compensated by the state from moneys contained in the alcohol and drug abuse court referral officer trust fund and any federal grants designated by the administrative office of the supreme court of appeals for this purpose.
( b) Court referral officers shall be required to perform the following duties:
( 1) Attend municipal, magistrate and circuit courts as needed;
( 2) Screen and evaluate all defendants ordered by the courts to participate and to recommend to the court appropriate educational, treatment or rehabilitative programs for such defendants;
( 3) Develop and maintain a file on each defendant assigned to the court referral officer, which shall include, but shall not be limited to, information taken from arrest records, test scores, results of chemical blood alcohol tests, drug screens and other personal data;
( 4) Continuously monitor defendants who are ordered to complete alcohol or drug related educational or rehabilitative programs and to report violations of such orders to the prosecutor or court;
( 5) Provide such information and reports on defendants assigned to the court referral officer as may be required by the prosecutor, ordering court or the director;
( 6) Provide information or education on the court referral program to judges, clerks, law-enforcement personnel, prosecutors and the general public;
( 7) Collect and report statistics, data, and other information pertaining to the court referral program and alcohol and drug related offenses as required by the director;
( 8) Collect and report information to the courts concerning results of urine screens, drug testing or other appropriate evaluative measures; and
( 9) Perform such other duties or functions to further the purposes of this article as may be directed by the court which they serve or by the director.
§17C-5C-4. Mandatory enrollment program; guidelines; conditions.
( a) A person who is convicted of driving under the influence shall be ordered by the sentencing court having jurisdiction over the offense and participating in a pilot program to enroll in an alcohol or drug abuse treatment program provided for in this article, if the person is a serious alcohol or drug abuse offender as defined in subdivision five, section two of this article.
( b) Upon enrollment in the evaluation, education and rehabilitation program the offender is subject to the following conditions. The offender shall:
( 1) Provide information needed to conduct an assessment of his or her treatment needs;
( 2) Complete the recommended treatment;
( 3) Complete a drug or alcohol testing program;
( 4) Pay any restitution as may be ordered by the court;
( 5) Unless indigent, pay for his or her assessment, treatment, and monitoring.
§17C-5C-5. Enforcement.
Compliance with any order authorized pursuant to this chapter relating to evaluation, education treatment, monitoring and rehabilitation may be enforced by the court through exercise of its contempt powers.
§17C-5C-6. Bureau for behavioral health and health facilities to develop policies and procedures; certification.

The bureau for behavioral health and health facilities of the department of health and human resources shall develop policies and procedures which shall be followed in the treatment of offenders.
§17C-5C-7. Alcohol and drug abuse court referral officer trust fund established; use.
The alcohol and drug abuse court referral officer trust fund is hereby established and created as a separate fund in the state treasury. Such fund shall be used for operation of the alcohol and drug abuse court referral officer program. This fund shall consist of all moneys paid into the state treasury to the credit of such fund pursuant to this article and all moneys received for the benefit of the court referral officer program by legislative appropriation, grant, gift, or contributions by counties or municipalities, or otherwise. Such moneys shall be used and expended by the director to establish, organize, and administer the alcohol and drug abuse court referral officer program through one or more pilot programs. Any unexpended or unencumbered sums remaining in the fund at the end of the fiscal year except appropriations from other state funds shall remain in the fund to be preserved for the administration of the alcohol and drug abuse court referral officer program.
§17C-5C-8. Alcohol and drug abuse court referral officer trust fund - purpose of expenditures; effect on other appropriations.

Moneys contained in the alcohol and drug abuse court referral officer trust fund shall be expended by the director for purposes set out in section three of this article. Appropriations heretofore or hereafter made to the budget of the supreme court of appeals shall not be reduced by the amount of any funds contained in the alcohol and drug abuse court referral officer trust fund.
§17C-5C-9. Court referral officer assessment cost.
In addition to the imposition of any other costs, penalties, or fines imposed pursuant to law, any person convicted of driving under the influence as defined in subdivision four, section two of this article shall be ordered by the presiding court to pay an alcohol and drug abuse court referral officer assessment cost in an amount recommended by the director and approved by the supreme court of appeals. The state treasurer shall credit such sums to the alcohol and drug abuse court referral officer trust fund.
§17C-5C-10. Monitoring cost.
Any alcohol or drug-related offender referred for assessment shall pay a monitoring cost to the court referral officer which shall also be remitted to the state treasurer by the court referral officer by the tenth day of each month. The assessment cost and monitoring costs shall be established and regulated by the director and can be adjusted to ensure that adequate financial resources are available to support the court referral program and administration of the program.
§17C-5C-11. Eligibility of court referral programs to receive payments from fund.
The director shall establish criteria to determine the eligibility of court referral programs to receive payment from the court referral officer trust fund.
§17C-5C-12. Indigent offender alcohol and drug treatment trust fund - established cost; sanctions for failure to remit costs.

The indigent offender alcohol and drug treatment trust fund is hereby established and created as a separate fund in the state treasury. Such fund shall provide for payment to eligible alcohol and drug treatment programs for treatment and rehabilitation of indigent offenders. This fund shall consist of all moneys paid into the state treasury to the credit of such fund pursuant to this article and all moneys received for the benefit of the indigent offender alcohol and drug treatment trust fund by legislative appropriation, grant, or otherwise. A cost recommended by the director and approved by the supreme court of appeals shall be collected from each offender convicted of driving under the influence. The state treasurer shall credit such sums to the indigent offender alcohol and drug treatment trust fund. Failure of a court referral program or court referral officer to remit all costs collected shall be grounds for termination from the program.
§17C-5C-13. Indigent offender alcohol and drug treatment fund - criteria for eligibility of programs to receive payment from fund.

The bureau for behavioral health and health facilities shall establish criteria to determine which treatment programs shall be eligible to receive payment for treatment services for indigent offenders from this fund, and shall establish rates of reimbursement for treatment of indigent offenders. Such programs must be certified by the bureau for behavioral health and health facilities.
§17C-5C-14. Indigent offender alcohol and drug treatment trust fund - purpose of expenditures.

Moneys contained in the indigent offender trust fund shall be expended by the director for purposes set out in section twelve of this article. Such moneys shall be used and expended by the director to establish, organize, and administer the indigent offender alcohol and drug treatment programs, including all functions or projects of the department of health directly or indirectly relating thereto. Any unexpended or unencumbered sums remaining in the fund at the end of the fiscal year except appropriations from other state funds shall remain in the fund to be preserved for the administration of the indigent offender treatment program.
§17C-5C-15. Deposit of grants.
Any grants received by the director without instruction for its use in any court referral program shall be deposited in the funds in the treasury as described in this article in such manner as the director deems necessary to defray the costs of the pilot program or programs established pursuant to this article.
§17C-5C-16. Waiver of payment of costs for indigents; revocation of waiver; community service in lieu of payment.

Any person determined to be indigent by the court may request waiver of all or part of the costs established by this chapter. In such cases where a waiver of costs is granted, such waiver shall be limited to the time when the offender is unable to pay. If the offender becomes able to pay during the course of monitoring or treatment, or another future date, the waiver of costs may be revoked. The judge may order an indigent offender to perform community service in lieu of payment of costs.
§17C-5C-17. Reports to the Legislature.
On or before the first day of December, two thousand four, and on the same day in subsequent years, the director shall submit two reports each to the president of the Senate and speaker of the House of Delegates. One report shall contain relevant information dealing with the costs, expenses, and funding of the pilot program or programs in operation. A second report shall contain information pertaining to the performance of the pilot program or programs and their perceived impact on the problem of driving under the influence.
§17C-5C-18. Exemption from liability.
The director, employees of the administrative office of the supreme court of appeals, and the employees of the department of health, including the director of the bureau for behavioral health and health facilities, shall be exempt from civil liability for alleged acts of ordinary negligence for actions taken in performance of their official duties in carrying out the provisions of this article.
§17C-5C-19. Termination of pilot program.
A pilot program established pursuant to the provisions of this article shall terminate on or before the first day of April, two thousand nine unless continued by legislative action."
On motion of Delegates Amores and Michael, the amendment was amended on page three, section two, line thirteen, by striking out all of paragraph (C), and inserting in lieu thereof the following:
"(C) At the time the offense was committed, or within two hours thereafter, the person was tested positive for a controlled substance listed on schedule I, II, III, IV or V, article two, chapter sixty-a of this code or a combination of a controlled substance, and alcohol or another drug, and:
(i) Did not have a valid prescription for the controlled substance, or
(ii) Did have a valid prescription for the controlled substance, but the person's ability to operate a motor vehicle was significantly impaired.
(D) For purposes of subparagraph (C)(ii)above, a person's ability to operate a motor vehicle is significantly impaired when degradation of the person's cognitive skills, (such as information processing), and psychomotor skills (those involving eye-brain-hand coordination) render the person unable to operate a motor vehicle without presenting a danger to himself or herself or other members of the public."
The question now before the House being on the adoption of the amendment, as amended, the same was put and prevailed.
Having been engrossed, the bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 401), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4514) passed.
On motion of Delegates Amores and Michael, the title of the bill was amended to read as follows:
H. B. 4514 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §17C-5C-1, §17C-5C-2, §17C-5C-3, §17C-5C-4, §17C-5C-5, §17C-5C-6, §17C-5C-7, §17C-5C-8, §17C-5C-9, §17C-5C-10, §17C-5C-11, §17C-5C-12, §17C-5C-13, §17C-5C-14, §17C-5C-15, §17C-5C-16, §17C-5C-17, §17C-5C-18 and §17C-5C-19, all relating to creating one or more pilot programs establishing a court referral officer program to promote the screening, evaluation, education, treatment and rehabilitation of persons who are repeat offenders or serious offenders under provisions relating to driving under the influence of alcohol, controlled substances or drugs."
Delegate Staton moved that the bill take effect October 1, 2004.
On this question, the yeas and nays were taken (Roll No. 402), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4514) takes effect October 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4516, Relating to the state conservation committee and conservation districts; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 403), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4516) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4523, Allowing certain racing associations or licensees qualifying for an alternate tax to increase the number of races each performance ; on third 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 bills on third reading, Special Calendar.
At 4:42 p.m., on motion of Delegate Staton, the House of Delegates recessed for fifteen minutes and reconvened at that time.
Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred H. B. 4669 on third reading, House Calendar to the Special Calendar; and Com. Sub. for H. B. 4697, Com. Sub. for H. B. 4712, H. B. 4741, H. B. 4059, Com. Sub. for H. B. 2323, Com. Sub. for H. B. 2728, Com. Sub. for H. B. 2950, Com. Sub. for H. B. 4123, Com. Sub. for H. B. 4342, Com. Sub. for H. B. 4382, H. B. 4420, Com. Sub. for H. B. 4440 and H. B. 4523, all on third reading, Special Calendar to the House Calendar.


Special Calendar

Third Reading

H. B. 4669, Providing for establishment of special five-year demonstration professional development school project; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
On motion of Delegates Kuhn, Mezzatesta and Poling, the bill was amended on page four, after subdivision (3), by inserting a new subdivision, designated subdivision (4), to read as follows:
"(4) To provide specifications and direct the county board to post the positions for school personnel employed at the demonstration project school that encompass the special qualifications and any additional duties that will be required of the personnel as established in the job descriptions authorized pursuant to subdivision (3) of this section. The assertion that the job descriptions and postings are narrowly defined may not be used as the basis for the grievance of an employment decision for positions at a demonstration project school."
And,
By renumbering the subsequent subdivisions in sequence.
Having been engrossed, the bill was then read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 404), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4669) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 405), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4669) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4545, Teachers' Retirement Equity Act; on third reading, coming up in regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
The Committee on Finance moved to amend the bill on page three, after the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-7a. Plan closed to persons employed for the first time after June, 2004; former employees.

The retirement system created and established in this article shall be closed and no new members accepted therein after the thirtieth day of June, two thousand four. Notwithstanding the provisions of sections seven and eight of this article, all persons who are regularly employed for full- time service as a member or employee whose initial employment commences after the thirtieth day of June, two thousand four, shall become members of the state teachers' retirement system created and established in article seven-a of this chapter: Provided, That any person rehired after the thirtieth day of June, two thousand four, shall become a member of the teachers' defined contribution retirement system created and established in this article, or of the teachers retirement system created and established in article seven-a of this chapter, depending upon the system to which he or she last contributed while he or she was employed with an employer mandating membership and contributions to one of those plans: Provided, however, That if, and only if, the teachers' defined contribution retirement system is merged and consolidated with the teachers retirement system pursuant to the provisions of article seven-c of this chapter, then all employees shall become a member of the teachers retirement system as of the first day of July, two thousand five, as provided in article seven-c of this chapter.
ARTICLE. 7C. MERGER OF TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM WITH STATE TEACHERS RETIREMENT SYSTEM.
§18-7C-1. Short title.
This article may be cited as the 'Teachers' Retirement Equity Act'.
§18-7C-2. Legislative findings and purpose.
The Legislature declares that the State of West Virginia and its citizens have always believed in a strong public education system, with our own constitution mandating a thorough and efficient public education system. The Legislature notes that the quality of our State's education system is dependent, inter alia, upon the motivation and quality of its teachers and educational service personnel.
The Legislature finds and declares that the State of West Virginia is privileged to be the home of some of the best teachers and service personnel in this nation, and that our teachers and service personnel are dedicated and hard working individuals. The Legislature further finds and declares that our teachers and service personnel should have a retirement program whereby they know in advance what their retirement benefit will be, a defined benefit retirement program where our teachers and service personnel will not have to bear the risk of investment performance to receive their full retirement benefit. The Legislature notes that uncertainty exists in the investment markets, especially in the post September eleven era, and that placing this risk and uncertainty upon the State in the form of a defined benefit plan will protect and ensure a retirement benefit for our teachers and educational service personnel.
The Legislature declares that it is in the best interests of the teachers and public education in this state and conducive to the fiscal solvency of the teachers retirement system that the teachers' defined contribution retirement system be merged with the state teachers retirement system.
The Legislature also finds that a fiscally sound retirement program with an ascertainable benefit aids in the retention and recruitment of teachers and school service personnel, and that the provisions of this article are designed to accomplish the goals set forth in this section.
The Legislature has studied this matter diligently and in making the determination to merge the two plans has availed itself of an actuarial study of the proposed merger by the actuary of the consolidated public retirement board as well as engaging the service of two independent actuaries.
§18-7C-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Defined contribution system' means the teachers' defined contribution system created and established in article seven-b of this chapter.
(2) 'Existing retirement system' or 'state teachers retirement system' means the state teachers retirement system created and established in article seven-a of this chapter.
(3) 'Board' means the consolidated public retirement board created and established in article ten-d, chapter five of this code and its employees.
(4) 'Member' means and includes any person who has at least one dollar in the defined contribution system.
(5) 'Assets' or 'all assets' means all member contributions, employer contributions and interest or asset appreciation in a member's defined contribution account, less any applicable fees as approved by the board.
(6) 'Salary' or 'annual salary' means the annual contract salary for those persons working in accordance with an employment contract and in any other event as an annualized amount determined by multiplying a person's hourly rate of pay by two thousand eighty hours.
(7) 'Date of merger' means, in the event of a positive vote on the merger, the first day of July, two thousand five.
§18-7C-4. Merger.
On the first day of July, two thousand five, the teachers' defined contribution retirement system created and established in this article shall be merged and consolidated with the teachers retirement system created and established in article seven-a of this chapter, pursuant to the provisions of this article: Provided, That if the majority of the voting members of the teachers' defined contribution retirement system do not elect in favor of the merger, then the provisions of this article are void and of no force and effect, and the defined contribution system created and established in article seven-b of this chapter shall continue as the retirement system for all members in that system as of the thirtieth day of June, two thousand five and for those persons rehired who were paying into the defined contribution system at the time of his or her last employment.
If the merger provided for in this article occurs, should any future increase of existing benefits or the creation of new benefits under the teachers retirement system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, cause any additional unfunded actuarial accrued liability in the state teachers retirement pension system (calculated in an actuarially sound manner) during any fiscal year, such additional unfunded actuarial accrued liability of that pension system shall be fully amortized over no more than the seven consecutive fiscal years following the date the increase in benefits or new benefits become effective.
§18-7C-5. Notice, education, record keeping requirements.
(a) Commencing not later than the first day of August, two thousand four, the consolidated public retirement board shall begin an educational program with respect to the merger of the defined contribution plan with the state teachers retirement system. This education program shall address, at a minimum, the law providing for the merger, the mechanics of the merger, the election process, relevant dates and time periods, the benefits, potential advantages and potential disadvantages if members elect to remain in the defined contribution system, the benefits, potential advantages and potential disadvantages of becoming members of the teachers retirement system, potential state and federal tax implications in general attendant to the various options available to the members and any other pertinent information deemed relevant by the board. The board shall provide this information through its website, by written materials, electronic materials or both written and electronic materials delivered to each member and by classes or seminars, if, in the best judgment of the board, the classes and seminars are necessary. The board shall also provide this information through computer programs, or, at the discretion of the board through a program of individual counseling which is optional on the part of the member, and through any other educational program or programs deemed necessary by the board.
(b) The board shall provide each member with a copy of the written or electronic educational materials and with a copy of the notice of the election. The notice shall provide full and appropriate disclosure of the merger and the election process, including the date of the election. The board shall also cause notice of the election to be published in at least ten newspapers of general circulation in this state. This notice shall be by Class III legal advertisement published in accordance with the provisions of article three, chapter fifty-nine of this code. The board shall cause this notice to be published not later than thirty days prior to the beginning of the election period and not sooner than sixty days prior to the beginning of the election period.
(c) It is the responsibility of each member of the defined contribution plan to keep the board informed of his or her current address. If a member does not keep the board informed of his or her current address, he or she is deemed to have waived his or her right to receive any information from the board.
(d) Once the board has complied with the provisions of this section, every member of the defined contribution plan is deemed to have actual notice of the election and all matters pertinent thereto.
§18-7C-6. Conversion of assets from defined contribution system to state teachers retirement system.

(a) If a majority of members voting elect to merge the defined contribution system into the state teachers retirement system, the consolidation and merger shall be governed by the provisions of this article, the defined contribution retirement system shall not exist after the thirtieth day of June, two thousand five, and all members thereof shall become members of the state teachers retirement system as provided herein.
(b) Following the election in favor of the merger, the board shall transfer all assets in the defined contribution plan account into the state teachers retirement system and members shall have the option to pay into the state teachers retirement system one and one-half of one percent of the member's salary as of the thirtieth day of June, two thousand four multiplied by the number of years the member transferred from the defined contribution plan into the state teachers retirement system. Members shall have until the first day of July, two thousand six to pay this amount. If a member makes no payment whatsoever of this amount by the first day of July, two thousand six, the member is deemed to have forever waived his or her right to pay this amount and to have elected to not pay this amount. In this instance the board shall make the appropriate actuarial adjustment to that member's annuity.
(c) The board shall make available to the members a loan in accordance with the provisions of section thirty-four, article seven-a of this chapter to be used by the members to pay all or a part of the one and one-half percent amount established in this section. Notwithstanding any provision of this code, any rule or any policy of the board to the contrary, the interest rate on any loan used to pay the one and one-half percent amount may not exceed seven and one-half percent per annum and the amount borrowed may not exceed twelve thousand dollars. In the event a plan loan is used to pay the one and one-half percent, the board shall make any actuarial adjustments at the time the loan is made. The board shall make this plan loan available for members until the thirtieth day of June, two thousand six.
(d) The board shall include a payroll deduction program for the repayment of the plan loan established in this section.
(e) If the merger and consolidation is elected by a majority of those person voting, as of the first day of July, two thousand five, the members' contribution rate shall become six percent of his or her salary or wages and the retirement members who make a contribution into the state teachers retirement system on or after the first day of July, two thousand five shall be governed by the provisions of article seven-a of this chapter subject to the provisions of this article.
(f) In the event a member has withdrawn or cashed out part of his or her defined contribution plan, that member will not be given credit for those monies cashed out or withdrawn. The board shall make an actuarial determination as to the amount of credit a member loses on the amounts he or she has withdrawn or cashed out which actuarial adjustment shall be expressed as a loss of service credit: Provided, That a member may repay those amounts he or she cashed out or withdrew, along with interest determined by the board and receive the same credit as if the withdrawal or cash out never occurred if this repayment is completed within five years following the date of the cash out or withdrawal: Provided, however, That these amounts shall be fully repaid no later than the thirtieth day of June, two thousand five. If the repayment is five or more years following the cash out or withdrawal, then he or she must repay any forfeited employer contribution account balance along with interest determined by the board in addition to the cash out or withdrawn amount: Provided further, That these amounts shall be fully repaid not later than the thirtieth day of June, two thousand five.
(g) Where the member has cashed out of his or her teacher defined contribution plan account balance after the last day of June, two thousand, and that member wishes to repurchase defined contribution plan service after the thirtieth day of June, two thousand five, then the member must repay the teachers retirement plan within five years of the date of cash out.
(h) Any prior service in the state teachers retirement system a member may have is not affected by the provisions of this article.
§18-7C-7. Service credit in state teachers retirement system following merger.
Any member transferring all of his or her assets from the defined contribution system to the state teachers retirement system pursuant to the provisions of this article, and who has not made any withdrawals from his or her defined contribution plan, is entitled to service credit in the state teachers retirement system for each year, or part thereof, as governed by the provisions of article seven-a of this chapter, the member worked and contributed to the defined contribution plan. Any member who has made withdrawals or cash outs will receive service credit based upon the amounts transferred and the board shall make the appropriate actuarial determination of the service credit the member will receive.
§18-7C-8. Election; board may contract for professional services.
(a) The board shall arrange for and hold an election for the members of the defined contribution plan on the issue of merging and consolidating the defined contribution plan into the state teachers retirement plan with the result being that, if a majority of the members casting ballots vote in the positive on the issue, all members of the defined contribution plan will transfer, or have transferred, all assets held by them or on their behalf in the defined contribution plan to and become members of, and entitled to the benefits of the state teachers retirement system and be governed by the provisions of the state teachers retirement system subject to the provisions of this article: Provided, That at least one-half of the members of the defined contribution plan must vote on the question in order for the election to be valid and binding.
(b) Any person who has one dollar or more in a defined contribution account created and established pursuant to article seven-b of this chapter, is allowed to vote on the question of the merger.
(c) The board may retain the services of the professionals it deems necessary to: (1) assist in the preparation of educational materials for members of the defined contribution plan to inform these members of their options in the election; (2) assist in the educational process of the members; (3) assist in the election process and the election; and (4) ensure compliance with all relevant state and federal laws.
(d) Due to the time constraints inherent in the merger process set forth in this article in specific, and to the nature of the professional services required by the consolidated public retirement board in general, the provisions of article three, chapter five-a of this code relating to the division of purchasing of the department of administration do not apply to any contracts for any actuarial services, investment services, legal services or other professional services authorized under the provisions of this article.
(e) The election provided for in this section may be held through certified mail or in any other way the board determines is in the best interest of the members. Each ballot shall contain the following language, in bold fifteen point type: 'By casting this ballot I am making an educated, informed and voluntary choice as to my retirement and the retirement system of which I wish to be a member. I am also certifying that I understand the consequences of my vote in this election.' Each ballot shall be signed by the member voting. The board shall retain the ballots in a permanent file.
(f) The election period shall begin not later than the first day of March, two thousand five and the board shall ascertain the results of the election not later than the last day of March, two thousand five. The board shall certify the results of the election to the governor, to the Legislature and to the members not later than the fifth day of April, two thousand five.
(g) The election period shall terminate and no votes may be cast or counted after the twelfth day of March, two thousand five except that if the election is conducted through the United States mails, the ballot shall be postmarked not later than the twelfth day of March, two thousand five in order to be counted.
(h) The board shall take all necessary steps to see that the merger does not affect the qualified status with the Internal Revenue Service of either retirement plan.
§18-7C-9. Election deemed final.
(a) The election is deemed final and each member, whether he or she votes, or fails to vote, shall thereafter be bound by the results of the election. Every member is deemed to have made an informed, educated, knowing and voluntary decision and choice with respect to the election. Those members who fail or refuse to vote are also deemed to have made an informed, educated, knowing and voluntary decision and choice with respect to the election and with respect to voting and shall be bound by the results of the election as if he or she voted in the same.
(b) Only one election may be held pursuant to the provisions of this article on the issue of merging and consolidating the defined contribution plan with the state teachers retirement plan.
§18-7C-10. Qualified domestic relations orders.
Any member having a qualified domestic relations order against his or her defined contribution account is allowed to repurchase service in the state teachers retirement system by repaying any monies distributed to the alternate payee along with the interest as set by the board: Provided, That a member shall repay any amounts under this section by the last day of June, two thousand eleven. The provisions of this section are void and of no effect if the members of the defined contribution plan fail to elect to merge and consolidate the defined contribution plan with the state teachers retirement system.
§18-7C-11. Vesting.
Any member who works one hour or more after the date of merger provided for in this article occurs is subject to the vesting schedule set forth in article seven-a of this chapter: Provided, That if a member is vested under the defined contribution plan and his or her last contribution was not made to the state teachers retirement system, that member is subject to the vesting schedule set forth in article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
(a) Any member of the defined contribution plan who has made a contribution to the state teachers retirement system after the date of merger is guaranteed a minimum benefit equal to his or her contributions to the defined contribution plan as of the thirtieth day of June, two thousand five, plus his or her vested employer account balance as of that date, as stated by the board or the boards professional contractor.
(b) A member of the defined contribution plan who has made contributions to the state teachers retirement system after the thirtieth day of June, two thousand five, where that plan has been merged into the state teachers retirement system pursuant to the provisions of this article shall have, upon eligibility to receive a distribution under article seven-a of this chapter, at a minimum, the following three options: (1) The right to receive an annuity from the state teachers retirement system created and established in article seven-a of this chapter based upon the benefit and vesting provisions of that article; (2) The right to withdraw from the state teachers retirement plan and receive his or her member accumulated contributions plus regular interest thereon as set forth in article seven-a of this chapter; or (3) The right to withdraw and receive his or her original vested defined contribution account balance as of the date of the merger as determined by the board or its professional third party benefits administrator pursuant to the vesting provisions of section twelve of this article.
(c) Any member of the teachers' defined contribution system who makes no contribution to the state teachers retirement system following approval of the merger and following the date of merger is guaranteed the receipt of the amount in his or her total vested account in the defined contribution plan on the date of merger plus interest thereon at four percent accruing from the date of merger.
§18-7C-13. Due process and right to appeal.
Any person aggrieved by any actuarial determination made by the board following the election, if the result of the election is in favor of merger and consolidation, may petition the board and receive an administrative hearing on the matter in dispute. The administrative decision may be appealed to a circuit court.
§18-7C-14. Nonseverability.

If any provision of this article is held unconstitutional or void, the remaining provisions of this article shall be void and of no effect, and, to this end, the provisions of this article are hereby declared to be nonseverable."

On motion of Delegates Michael and Campbell, the Committee amendment was amended on
page seven, section six, beginning on line twenty-two, by striking out subsection (b) in its entirety and inserting in lieu thereof the following:
"(b) Following the election in favor of the merger, the Board shall transfer all assets in the defined contribution account into the state teachers retirement system and members have the option to pay into the state teachers retirement system a one and one-half of one percent contribution for service in the defined contribution plan being recognized in the state teachers retirement system. This contribution shall be calculated based on the member's salary as of the thirtieth day of June, two thousand four and the members attained age on that date, applying an annual backward salary scale projection from that date for prior years based upon the salary scale assumption applied in the actuarial valuation dated the first day of July, two thousand three for the teachers retirement system and a one year forward salary scale projection for the year ending on the thirtieth day of June, two thousand five. Members have until the first day of July, two thousand six to pay this amount. If a member makes no payment whatsoever toward this amount by the first day of July, two thousand six, the member is deemed to have forever waived his or her right to pay this amount and to have made an irrevocable election not to pay this amount. In this instance, the board shall make the appropriate actuarial adjustment to that member's annuity."
The question now before the House being on the adoption of the amendment, as amended, the same was put and prevailed.
Having been engrossed, the bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 406), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Frederick.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4545) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 4545 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-7B-7a; and to amend said code by adding thereto a new article, designated §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C-8, §18- 7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and 18-7C-14, all relating to the merger and consolidation of the teachers' defined contribution retirement system and the state teachers retirement system generally; closing the teachers' defined contribution retirement system to newly hired personnel; providing that certain persons rehired are to become members of the last plan contributed to; setting forth short title; providing legislative findings and purpose; providing definitions; providing for merger and consolidation of the teachers' defined contribution retirement system and the state teachers retirement system upon election; providing responsibilities of the consolidated public retirement board; setting forth dates and time periods for transition and election; requiring that increase of or new benefits to the teachers retirement system be amortized over a seven-year time period; providing for education about election and merger for members; requiring legal notice to members; providing for transfer of assets from the teachers' defined contribution retirement system to the state teachers retirement system upon favorable vote for consolidation and merger; providing that the teacher's defined contribution retirement system shall not exist upon favorable vote for consolidation and merger; setting forth terms of merger and consolidation of the teachers' defined contribution retirement system and the state teachers retirement system; providing for service credit in the state teachers retirement; requiring members of teachers' defined contribution plan to pay additional amount to receive credit upon merger; providing options and loans for members moving to the remaining plan; providing service credit for transferring member; addressing withdrawals and cash outs; providing for election on the question of merger and consolidation of the teachers' defined contribution retirement system and the state teachers retirement system; setting forth requirements of election; allowing consolidated public retirement board to contract directly for professional services for purposes of performing its responsibilities related to the merger and consolidation and conducting the election; permitting only one election; addressing qualified domestic relations orders; providing for vesting of members and minimum guarantees of benefits for them; providing for due process and right to appeal; and providing for nonseverability of the new article."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 407), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4545) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4561, Authorizing the director of the division of natural resources to allow nonresidents to train dogs for coon hunting; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 408), 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, Leggett and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4561) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4563, Relating to the public employees retirement system; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
On motion of Delegate Campbell, the bill was amended on page thirteen, section two, line eleven, by deleting the word "ten", and inserting in lieu thereof the word "fifteen".
Having been engrossed, the bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 409), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4563) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4582, Limiting the division of labor elevator inspectors to inspection of elevators in state owned buildings; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 410), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4582) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4607, Conferring the duties of the industrial revenue bond allocation review committee to the board of the West Virginia economic development authority; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 411), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4607) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4625, Authorizing the tourism commission the use of the tourism promotion fund to support the 2004 Pete Dye West Virginia Classic; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 412), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4625) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 413), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4625) takes effect form its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4626, Providing a salary supplement for providers of medicaid eligible services in the public schools; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 414), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4626) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4641, Establishing a credentialing program for dialysis technicians by the board of registered professional nurses; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
The Committee on Government Organization moved to amend the bill on page one, 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 a new article, designated §30-7B-1, §30-7B-2, §30-7B-3, §30-7B-4, §30-7B-5 and §30-7B-6, all to read as follows:
ARTICLE 7B. DELEGATION OF DIALYSIS CARE.
§30-7B-1. Definitions.

As used in this article:
(1) 'Approved dialysis technician training program' means any board approved program used to train dialysis technicians including, but not limited to, a board approved dialysis facility-sponsored training program or another state approved program.
(2) 'Dialysis care' means performing and monitoring dialysis procedures which includes initiating and discontinuing dialysis, drawing blood, and administering the following medications: (A) Heparin either to prime the pump, initiate treatment or for administration throughout the treatment, in an amount prescribed by a physician or other practitioner duly authorized to so prescribe. This may be done either intravenously, peripherally via a fistula needle or in another clinically acceptable manner;
(B) Normal saline via the dialysis extracorporeal circuit as needed throughout the dialysis procedure; and
(C) Intradermal anesthetic in an amount prescribed by a physician or other practitioner duly authorized to so prescribe.
(3) 'Direct supervision' means initial and ongoing direction, procedural guidance, observation, and evaluation, and the on-site presence of a registered nurse or physician.
(4) 'West Virginia dialysis technician or dialysis technician' means an individual who has successfully completed an approved dialysis technician training program and who has achieved national certification as a dialysis technician, or an individual who meets the requirements set forth in the board's rule pertaining to dialysis technicians practicing prior to the first day of July, two thousand four.
§30-7B-2. Authority to delegate care.
(a) A person licensed as a registered professional nurse under the provisions of article seven of this chapter may delegate dialysis care to a dialysis technician if:
(1) The dialysis technician has completed the requirements set forth in this article and established by the board by rule;
(2) The registered professional nurse considers the dialysis technician to be competent; and,
(3) The dialysis technician provides the care under the direct supervision of the registered professional nurse.
(b) A person licensed as a registered professional nurse under the provisions of article seven of this chapter may not delegate dialysis care to a person who is listed on the nurse aide abuse registry with a substantiated finding of abuse, neglect or misappropriation of property.
§30-7B-3. Training and testing standards; approval.
(1) The board shall prescribe standards for an approved dialysis technician training program, and prescribe testing standards and requirements, by legislative rule.
(2) Persons and organizations providing training programs and testing services must be approved by the board.
(3) Approval may be denied or withdrawn for failure to meet the standards set out in code or rule, or failure to meet the requirements of section five of this article.
§30-7B-4. Rulemaking authority.
(a) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of the code to:
(1) Prescribe standards for training programs;
(2) Prescribe testing standards and requirements;
(3) Prescribe requirements for persons and organizations providing training programs and testing services;
(4) Assess fees for the approval of training programs, tests and providers of training programs and testing services;
(5) Prescribe standards for individuals who are practicing as dialysis technicians prior to the first day of July, two thousand four, in the transition of meeting the requirements of this article; and,
(6) Provide for any other requirements to carry out the purposes of this article.
(b) The board may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code for the purposes set forth in subsection (a) of this section.
§30-7B-5. Facilities to determine qualifications and provide information to board.

(a) Facilities which provide dialysis care through the employment of dialysis technicians shall determine that the dialysis technicians in their employment have met the standards and requirements of this article and the legislative rules promulgated pursuant to this article, including determining whether any dialysis technician is listed on the nurse aide abuse registry with a substantiated finding of abuse, neglect or misappropriation of property.
(b) On or before the first day of July of each year, every facility in the state of West Virginia which provides dialysis care through the employment of dialysis technicians shall provide a list to the board of the names and addresses of all dialysis technicians employed at the facility.
§30-7B-6. Authority contingent upon submission of application to regulate dialysis technicians.

The authority to delegate the performance of dialysis care pursuant to the provisions of this article shall cease on the first day of December, two thousand four, unless an application to regulate dialysis technicians is submitted in accordance with the provisions of article one-a of this chapter on or before that date. "

On motion of Delegate Beane, the Committee amendment was amended on page one, section one, after line eight, by inserting a new subsection (2) to read as follows:
"(2) 'Board' means the West Virginia board of examiners for registered professional nurses" followed by a period and by renumbering the remaining subsections accordingly.
On page five, section six, line nine, by striking out the word "December" and inserting in lieu thereof the word "August", and by striking out the word "four" and inserting in lieu thereof the word "five".
On page five, section six, line nine, after the words "is submitted", by inserting the words "by the first day of December, two thousand four".
The question before the House being on the adoption of the Committee amendment as amended, the same was out and prevailed.
Having been engrossed, the bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 415), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4641) passed.
An amendment to the title of the bill, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 4641 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §30-7B-1, §30-7B-2, §30-7B-3, §30-7B-4, §30-7B-5 and §30-7B-6, all relating to the delegation of dialysis care; authorizing delegation under certain circumstances; providing for training and testing standards; providing for approval or disapproval of training programs and testing organizations; providing for exceptions to training and testing requirements; authorizing rulemaking and emergency rulemaking; requiring facilities to provide information to the board; and providing for the expiration of authority in absence of sunrise application."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4649, Providing for greater efforts for instate placement of children in the custody of the Department of Health and Human Services; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
On motion of Delegates Amores and DeLong, the bill was amended on page seven, line thirty, immediately following the word "shall", by omitting the words "obtain and".
Having been engrossed, the bill was then ordered to third reading.
On the passage of the bill, the yeas and nays were taken (Roll No. 416), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4649) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4670, Relating generally to corporation net income tax; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 417), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4670) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4672, Relating to calculation of workers' compensation premiums for members of limited liability companies; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 418), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4672) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 419), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Ellem, Leggett and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4672) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4709, Allowing the commissioner of labor to charge fees for laboratory services and calibrations' on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 420), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Sumner and Walters.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4709) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4739, Relating to legislative appropriation of tobacco settlement funds and strategic contribution funds' on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 421), and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Ellem, Louisos, Schoen and Sumner.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4739) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4740, Relating to the establishment, initial funding and operation of a patient injury compensation fund; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 422), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4740) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4742, Prohibiting state institutions of higher education from requiring students to purchase bundled textbook packages; on third reading, coming up in regular, was, on motion of Delegate Staton, laid upon the tabled.
H. B. 4743, Establishing conditions precedent to eliminating certain National Collegiate Athletic Association eligible teams; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 423), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4743) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 424), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4743) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4746, Relating generally to the state treasurer's office; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 425), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4746) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4003, Adjusting the age for members of the West Virginia state police retirement system; on third reading, coming up in regular order, with amendments pending, was reported by the Clerk.
The Clerk reported an amendment recommended by the Committee on Pensions and Retirement.
At the request of Delegate Campbell, and by unanimous consent, the amendment from the Committee on Pensions and Retirement was subsequently withdrawn.
On motion of Delegates Campbell and Michael, the bill was then amended by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §12-2A-2, §15-2A-6, §15-2A-9 and §15-2A-10 of the code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Active military duty' means full-time active duty with the armed forces of the United States, namely, the United States air force, army, coast guard, marines or navy; and service with the national guard or reserve military forces of any of the armed forces when the member has been called to active full-time duty and has received no compensation during the period of that duty from any person other than the armed forces.
(2) 'Base salary' means compensation paid to a member without regard to any overtime pay.
(3) 'Board' means the consolidated public retirement board created pursuant to article ten-d, chapter five of this code.
(4) 'Division' means the division of public safety.
(5) 'Final average salary' means the average of the highest annual compensation received for employment with the division, including compensation paid for overtime service, received by the member during any five years within the member's last ten years of service.
(6) 'Fund' means the West Virginia state police retirement fund created pursuant to section four of this article.
(7) 'Member' or 'employee' means a person regularly employed in the service of the division of public safety after the effective date of this article.
(8) 'Salary' means the compensation of a member, excluding any overtime payments.
(9) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as it has been amended.
(10) 'Plan year' means the twelve-month period commencing on the first day of July of any designated year and ending the following thirtieth day of June.
(11) 'Required beginning date' means the first day of April of the calendar year following the later of: (a) The calendar year in which the member attains age seventy and one-half; or (b) the calendar year in which he or she retires or otherwise separates from service with the department.
(12) 'Retirement system' or 'system' means the West Virginia state police retirement system created and established by this article.
(13) 'Month of service' means each month for which a member is paid or entitled to payment for at least one hour of service for which contributions were remitted to the fund. These months shall be credited to the member for the calendar year in which the duties are performed.
(14) 'Years of service' means the months of service acquired by a member while in active employment with the department divided by twelve. 'Years of service' shall be calculated in years and fraction of a year from the date of active employment of the member with the department through the date of termination of employment or retirement from the department. If a member returns to active employment with the department following a previous termination of employment with the department, and such member has not received a refund of contributions plus interest for such previous employment under section eight of this article, service shall be calculated separately for each period of continuous employment and 'years of service' shall be the total service for all such periods of employment. 'Years of service' shall exclude any periods of employment with the department for which a refund of contributions plus interest has been paid to the member, unless the member repays such previous withdrawal as provided for in section eight of this article to reinstate such years of service.
§15-2A-6. Retirement; commencement of benefits.

A member may retire with full benefits upon attaining the age of fifty-five fifty-two and completing twenty or more years of service, by lodging with the consolidated public retirement board his or her voluntary petition in writing for retirement. A member who is less than age fifty-five fifty- two may retire upon completing twenty years or more of service: Provided, That he or she will receive a reduced benefit that is of equal actuarial value to the benefit the member would have received if the member deferred commencement of his or her accrued retirement benefit to the age of fifty-five fifty-two.
When the retirement board retires a member with full benefits under the provisions of this section, the board, by order in writing, shall make a determination that the member is entitled to receive on annuity equal to two and three-fourths percent of his or her final average salary multiplied by the number of years, and fraction of a year, of his or her service in the division department at the time of retirement. The member's annuity shall begin the first day of the calendar month following the month in which his or her application for the same is filed or lodged with the board on or after his or her attaining age or service requirements, and termination of employment.
In no event may the provisions of section thirteen, article sixteen, chapter five be applied in determining eligibility to retire with either a deferred or immediate commencement of benefit.
§15-2A-9. Awards and benefits for disability - Incurred in performance of duty.
Any member of the division who has been or shall become physically or mentally permanently disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division and incurred pursuant to or while the member was or shall be engaged in the performance of his or her duties as a member of the division shall, if, in the opinion of the retirement board, he or she is by reason of such cause unable to perform adequately the duties required of him or her as a member of the division, but is able to engage in other gainful employment be retired from active service by the board. The member shall thereafter be entitled to receive annually and there shall be paid to the member from the fund in equal monthly installments during the lifetime of the member, or until the member attains the age of fifty-five or until such disability shall sooner terminate, one or the other of two amounts, whichever is greater:
(1) An amount equal to six tenths of the base salary received in the preceding twelve-month employment period: Provided, That if the member had not been employed with the division for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
Upon attaining age fifty-five fifty-two, the member shall receive the benefit provided for in section six of this article, if it is a higher benefit than the benefit the member is receiving under the disability provisions set out above, as it would apply to his or her final average salary based on earnings from the division through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty-five fifty-two shall be deemed to be a retirement under the provisions of section six of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article. A benefit received by a member based on a disability as set out above may not be reduced during the lifetime of the member.
If any member shall become permanently physically or mentally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division and incurred pursuant to or while such member was or shall be engaged in the performance of his or her duties as a member of the division to the extent that the member is or shall be incapacitated ever to engage in any gainful employment, the member shall be entitled to receive annually, and there shall be paid to such member from the fund in equal monthly installments during the lifetime of the member or until such disability shall sooner terminate, an amount equal to the amount of the base salary received by the member in the preceding twelve-month employment period.
The superintendent of the division is authorized to expend moneys from funds appropriated for the division in payment of medical, surgical, laboratory, X ray, hospital, ambulance and dental expenses and fees, and reasonable costs and expenses incurred in the purchase of artificial limbs and other approved appliances which may be reasonably necessary for any member of the division who has or shall become temporarily, permanently or totally disabled by injury, peculiar to the service required of members of the division and incurred pursuant to or while the member was or shall be engaged in the performance of duties as a member of the division. Whenever the superintendent shall determine that any disabled member is ineligible to receive any of the aforesaid benefits at public expense, the superintendent shall, at the request of the disabled member, refer such matter to the board for hearing and final decision.
§15-2A-10. Same - Due to other causes.
If any member while in active service of the division has or shall, in the opinion of the board, become permanently disabled to the extent that he or she cannot adequately perform the duties required of a member of the division for any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, the member shall be retired by the board. There shall be paid to the member from the fund in equal monthly installments, commencing on the date the member shall be retired and continuing during the lifetime of the member, or until the member attains the age of fifty-five fifty-two; while in status of retirement an amount equal to one-half the base salary received by the member in the preceding twelve-month period: Provided, That if the member had not been employed with the division for twelve months prior to the disability, the amount of the monthly salary shall be annualized for the purpose of determining the benefit.
Upon attaining age fifty-five fifty-two, the member shall receive the benefit provided for in section six of this article as it would apply to his or her final average salary based on earnings from the division through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty-five fifty-two shall be deemed to be a retirement under the provisions of section six of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article."
Having been engrossed, the bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 426), 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, Long and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4003) passed.
On motion of Delegates Campbell and Michael, the title of the bill was amended to read as follows:
H. B. 4003 - "A BILL to amend and reenact §15-2A-2, §15-2A-6, §15-2a-9 and §15-2A-10 of the code of West Virginia, 1931, as amended, all relating to the West Virginia state police retirement system; providing definitions for month of service and years of service; lowering the normal retirement age; specifying starting date of annuity; and eliminating any reduction in the benefit of a state police officer who is disabled on the job."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4452, Relating to the West Virginia state police retirement system; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
H. B. 4103, Eliminating any reduction in the benefit of a state police officer who is disabled on the job when the officer attains the age of fifty-five; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
At 6:23 p.m, on motion of Delegate Staton, the House of Delegates recessed until 6:50 p.m., and reconvened at that time.


Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred Com. Sub. for H. B. 4123 and H. B. 4523, on Third Reading, House Calendar, to the Special Calendar.


Special Calendar

Third Reading

Com. Sub. for H. B. 4123, Authorizing the supreme court of appeals to create a panel of senior magistrate court clerks; on third reading, coming up in regular order, with an amendment pending, and the further right to amend, was reported by the Clerk.
On motion of Delegate Michael, the bill was amended on page five, section eight, line nine, following the word "thousand" by striking "five four" and inserting in lieu thereof "five".
The Clerk next reported an amendment heretofore filed by Delegate Trump, which sought to amend the bill on page three, section three, lines fourteen, sixteen, twenty-two, twenty-five, twenty-eight and on page four, section three, line thirty-one, by striking out the word "eight" and inserting in lieu thereof the word "seven".
On page five, section eight, lines thirteen, sixteen, twenty and twenty-three, by striking out the word "eight" and inserting in lieu thereof word "seven".
And,
On page nine, section nine, lines forty, forty-three, forty-seven and fifty, by strikingout the words "eight" and inserting in lieu thereof the word "seven".
Delegate Trump then asked and obtained unanimous consent that the foregoing amend be withdrawn.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 427), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4123) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4523, Allowing certain racing associations or licensees qualifying for an alternate tax to increase the number of races each performance; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 428), and there were--yeas 73, nays 25, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Azinger, Border, Calvert, Canterbury, Carmichael, Caruth, Ellem, Evans, Frederick, Frich, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Romine, Schoen, Sobonya, Sumner, Susman, Walters and Webb.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4523) 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:
H. B. 4523 - "A Bill to amend and reenact §19-23-3, §19-23-9, §19-23-10, §19-23-13 and §19-23-13b of the code of West Virginia, 1931, as amended, all relating to horse and dog racing generally; defining certain terms; allowing a yearling horse to be shipped from the state to obtain veterinary services without losing its status as an accredited thoroughbred horse; authorizing thoroughbred racetrack licensees to enter into agreements with local Horsemen's Benevolent and Protective Association for payment of up to two percent of purses actually paid for medical trusts for backstretch personnel and administrative fees; allowing certain racing associations or licensees qualifying for an alternate tax, when conducting more than one racing performance a day, to increase the number of races each performance may have to thirteen, before it must pay both the daily license tax and the alternative tax; requiring owners of accredited West Virginia whelped greyhounds to be both bona fide residents of West Virginia and registered for purposes of receiving funds from the greyhound breeding development fund; establishing qualifications to be considered a bona fide resident; establishing qualifications for considerations as an accredited West Virginia whelped greyhound; providing breeding requirements for mares participating in the West Virginia futurity; and increasing the amount of restricted thoroughbred horse races in certain circumstances."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.


Second Reading

Com. Sub. for H. B. 4006, Increasing the vendor registration fee per fiscal year with a limited waiver provided; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
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. 429), and there were--yeas 93, nays 5, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Border, Calvert, Caruth, Frich and Louisos.
Absent And Not Voting: Coleman and Yeager.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 430), and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Frich, Louisos, Sobonya, Sumner, Walters and Webb.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4006) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4714, Clarifying that certain community education programs support public education; on second reading, coming up in regular order, was read a second time.
On motion of Delegate Beach, the bill was amended on page two, line nine, by striking out the word "art" inserting the word "arts".
The bill was then ordered to engrossment and third reading.
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. 431), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Coleman and Yeager.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 432), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4714) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.


First Reading

Com. Sub. for H. B. 4491, Relating to mine inspectors and instructors employed by the office of miners' health, safety and training; on first reading, coming up in regular order, was read a first time and ordered to second reading.
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. 433), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
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 and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 434), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4491) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
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 first reading, coming up in regular order, was read a first time and ordered to second reading.
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. 435), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
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 and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a second third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 436), and there were--yeas 91, nays 7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Border, Calvert, Carmichael, Duke and Overington.
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4566) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4747, Increasing general revenues of the state by authorizing new fees and increasing existing fees to be charged by the state police; on first reading, coming up in regular order, was read a first time and ordered to second reading.
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. 437), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
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 and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 438), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead.
Absent And Not Voting: Coleman, Smirl and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4747) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Unanimous consent having been obtained by Delegate Staton, the House then proceeded to take up further items remaining on the Consent Calendar.


Consent Calendar

Delegate Staton asked unanimous consent, and there being no objection, the House assented to take up certain bills on second reading, each bill having been read a first time in earlier proceedings on today, as follows:
H. B. 2991, Relating to the fee charged by fiduciary commissioners in settling an estate.
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. 439), 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: Beach, Coleman and Yeager.
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 and ordered to engrossment and third reading
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 440), 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: Beach, Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2991) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4354, Authorizing county commissions to adopt ordinances to reduce false alarms.
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. 441), 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: Beach, Coleman and Yeager.
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 and ordered to engrossment and third reading
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 442), 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: Beach, Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4354) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4495, Providing that the assignment and transfer of real property for research and development at institutions of higher education for economic development purposes includes housing projects.
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. 443), 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: Beach, Coleman and Yeager.
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 and ordered to engrossment and third reading
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 444), 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: Beach, Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4495) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4634, Requiring persons incarcerated in county and regional jails who have been convicted of a misdemeanor reimburse the county for the cost incurred for his or her incarceration.
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. 445), 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: Beach, Coleman and Yeager.
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 and ordered to engrossment and third reading
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 446), 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: Beach, Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4634) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Trump asked and obtained unanimous consent that the House take up the following bill on second reading, having been read a first time in earlier proceedings on today, as follows:

H. B. 4585, Permitting the use of speaker phones or other electronic means unless specifically prohibited by articles of incorporation or bylaws.
Delegate Trump 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. 447), and there were--yeas 51, nays 46, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Amores, Beane, Blair, Boggs, Campbell, Craig, Crosier, DeLong, Ennis, Ferrell, Fleischauer, Hartman, Kominar, Kuhn, Leach, Long, Mahan, Martin, Mezzatesta, Michael, Morgan, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino, Proudfoot, Renner, Shaver, Spencer, Stalnaker, Staton, Stemple, Swartzmiller, Tabb, Talbott, Thompson, R.M., Tucker, Varner, Warner, Webster, White, H., Williams, Wright and Mr. Speaker, Mr. Kiss.
Absent And Not Voting: Beach, Coleman and Yeager.
So, four fifths of the members present and voting not having voted in the affirmative, the constitutional rule was not dispensed with.
At 7:45 p.m., on motion of Delegate Staton, the House of Delegates recessed until 7:50 p.m., and reconvened at that time.
Unanimous consent having been obtained, the House next proceeded to take up ceratin bills reported to the Consent Calendar in earlier proceedings today, on First Reading:


First Reading

Com. Sub. for H. B. 4489, Imposing a lien and recovery for unpaid child support on the proceeds due a child support debtor from a settlement, judgment or award.
The bill was then taken up for immediate consideration, read a first time and ordered to second reading
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. 448), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Calvert and Carmichael.
Absent And Not Voting: Beach, Coleman and Yeager.
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 and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 449), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4489) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4653, Opening the upper area New River for float trips and bateau style boats following an economic study of the area and a study of new licensing regulations.
The bill was then taken up for immediate consideration, read a first time and ordered to second reading
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. 450), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Sobonya and Walters.
Absent And Not Voting: Coleman and Yeager.
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 and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 451), and there were--yeas 94, nays 3, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Louisos, Schoen and Webb.
Absent And Not Voting: Beach, Coleman and Yeager.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4653) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4534, Providing a procedure to permit owners of mobile homes to obtain cancellation of certificates of title when the mobile home is permanently attached to the owner's real estate.
The bill was then taken up for immediate consideration, read a first time and ordered to second reading
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. 452), and there were--yeas 36, nays 60, absent and not voting 4, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury, Caputo, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Howard, Hrutkay, Leggett, Louisos, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Susman, Talbott, Trump, Wakim, Walters, Webb and White, G..
Absent And Not Voting: Beach, Coleman, Fragale and Yeager.
So, four fifths of the members present and voting not having voted in the affirmative, the constitutional rule was not dispensed with.
Com. Sub. for H. B. 4686, Making a technical correction to language dealing with fires being built on public and private roads.
The bill was then taken up for immediate consideration, read a first time and ordered to second reading
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. 453), and there were--yeas 15, nays 80, absent and not voting 5, with the yeas and absent and not voting being as follows:
Yeas: Browning, Caputo, DeLong, Faircloth, Fleischauer, Fragale, Frederick, Hatfield, Houston, Hrutkay, Louisos, Manchin, Manuel, Overington and Yost.
Absent And Not Voting: Beach, Coleman, Susman, White, G. and Yeager.
So, four fifths of the members present and voting not having voted in the affirmative, the constitutional rule was not dispensed with.
Com. Sub. for H. B. 4718, Establishing a three-year pilot project in Berkeley County creating a volunteer litter reporting program.
The bill was then taken up for immediate consideration, read a first time and ordered to second reading
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. 454), and there were--yeas 36, nays 61, absent and not voting 3, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Caputo, Carmichael, Caruth, DeLong, Duke, Evans, Faircloth, Fleischauer, Fragale, Frederick, Frich, Hall, Hatfield, Howard, Hrutkay, Louisos, Manchin, Manuel, Overington, Romine, Schadler, Schoen, Sobonya, Sumner, Tabb, Trump, Webb, White, G. and Yost.
Absent And Not Voting: Beach, Coleman and Yeager.
So, four fifths of the members present and voting not having voted in the affirmative, the constitutional rule was not dispensed with.


Leaves of Absence

At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day were granted Delegates Coleman and Yeager.


Miscellaneous Business

Delegate Susman submitted a written notice to the Clerk stating that had she been present when the vote was taken on the passage of H. B. 4661 (Roll No. 362), she would have voted "Nay" thereon.
Delegate Duke announced that he was absent when the votes were taken on Roll Nos. 366 and 367, and had he been present he would have voted "Yea" thereon.
At 8:10 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Thursday, March 4, 2004.