(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

FIRST EXTRAORDINARY SESSION, 2005


THIRD DAY

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Charleston, W. Va., Wednesday, January 26, 2005

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

Prayer was offered by the Honorable Brooks F. McCabe, Jr., a senator from the seventeenth district.
Pending the reading of the Journal of Tuesday, January 25, 2005,
On motion of Senator Minard, the Journal was approved and the further reading thereof dispensed with.
On motion of Senator Love, the special order of business set for this position on the calendar (consideration of executive nominations) was postponed and made a special order of business for tomorrow, Thursday, January 27, 2005, at 11 a.m.
The Senate proceeded to the second order of business and the introduction of guests.
The Clerk presented a communication from the Division of Personnel, submitting its annual report, in accordance with chapter twenty-nine, article six, section seven of the code of West Virginia.
Which communication and report were received and filed with the Clerk.
The Senate proceeded to the eighth order of business.
Senate Joint Resolution No. 101, Proposing amendment to Constitution designated Pension Bond Amendment.
On third reading, coming up in regular order, with the right having been granted on yesterday, Tuesday, January 25, 2005, for amendments to be received on third reading, was reported by the Clerk.
On motions of Senators Yoder, Unger, Bowman, Boley, Weeks, Sprouse and Helmick, the following amendment to the resolution was reported by the Clerk and adopted:
On page three, line nineteen, after the word "bonds." by inserting the following: The bond resolution shall pledge that while any of the bonds are outstanding the State will take all reasonable actions to prohibit any unfunded actuarial accrued liability from occurring in the pension systems administered by the State. The bond resolution shall further pledge, and the indenture shall so state, that while any of the bonds are outstanding, should any increase of existing benefits or the creation of new benefits under any of the pension systems administered by the State, other than an increase in benefits or new benefits effected by operation of law in effect on the date of ratification of this amendment, cause any additional unfunded actuarial accrued liability in any of the pension systems administered by the State (calculated in an actuarially sound manner) during any fiscal year, such additional unfunded actuarial accrued liability of that pension system will be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective.
The resolution, as just amended, was then ordered to engrossment.
Engrossed Senate Joint Resolution No. 101 was read a third time and put upon its adoption.
On the adoption of the resolution, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Harrison and Hunter--2.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the resolution (Eng. S. J. R. No. 101) adopted with its title, as follows:
Eng. Senate Joint Resolution No. 101--Proposing an amendment to the Constitution of the State of West Virginia authorizing appropriations and the issuance and sale of additional state general obligation bonds in an amount not exceeding five billion five hundred million dollars for the purpose of funding all or a portion of the unfunded actuarial accrued liabilities of the state teachers retirement system, §18-7A-1, et seq., of the Code of West Virginia, the judges' retirement system, §51-9-1, et seq., of said Code and the public safety death, disability and retirement system, §15-2-26, et seq., of said Code and paying any costs associated with the issuance of said bonds; authorizing the investment of the funds from such issuance and sale pursuant to the laws and Constitution of the State of West Virginia; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.
Resolved by the Legislature of West Virginia, two thirds of the members elected to each house agreeing thereto:
That the question of ratification or rejection of an amendment to the Constitution of the State of West Virginia be submitted to the voters of the State at the next general election to be held in the year two thousand six, or at any special election held prior thereto, which proposed amendment is as follows:
Pension Bond Amendment
The Legislature may authorize the issuing and selling of state general obligation bonds not exceeding in the aggregate five billion, five hundred million dollars, which shall be in addition to all other state bonds heretofore authorized. Such bonds may be issued and sold at such time or times and in such amount or amounts as the Legislature authorizes. When a bond issue as aforesaid is authorized, the Legislature shall direct the investment of such proceeds as permitted by the laws and the Constitution of the State of West Virginia. The proceeds of the bonds hereby authorized to be issued and sold shall be used solely for funding all or a portion of the unfunded actuarial accrued liabilities of the state teachers retirement system, §18-7A-1, et seq., of the Code of West Virginia, the judges' retirement system, §51-9-1, et seq., of said Code and the public safety death, disability and retirement system, §15-2-26, et seq., of said Code and paying any costs associated with the issuance of the bonds. The bond resolution shall pledge that while any of the bonds are outstanding the State will take all reasonable actions to prohibit any unfunded actuarial accrued liability from occurring in the pension systems administered by the State. The bond resolution shall further pledge, and the indenture shall so state, that while any of the bonds are outstanding, should any increase of existing benefits or the creation of new benefits under any of the pension systems administered by the State, other than an increase in benefits or new benefits effected by operation of law in effect on the date of ratification of this amendment, cause any additional unfunded actuarial accrued liability in any of the pension systems administered by the State (calculated in an actuarially sound manner) during any fiscal year, such additional unfunded actuarial accrued liability of that pension system will be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective.
When a bond issue as aforesaid is authorized, the Legislature shall at the same time provide for the levy, collection and dedication of an additional state tax, or enhancement to such other tax as the Legislature may determine, in such amount as may be required to pay annually the interest on such bonds and the principal thereof or premium, if any, within and not exceeding thirty years and all such taxes so levied shall be irrevocably dedicated for the payment of the principal of or premium, if any, and interest on such bonds until such principal of and interest on such bonds are finally paid and discharged. Any of the covenants, agreements or provisions in the Acts of the Legislature levying such taxes shall be enforceable in any court of competent jurisdiction by any of the holders of the bonds.
The Legislature may enact legislation necessary and proper to implement the provisions of this amendment.
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Resolved further, That in accordance with the provisions of article eleven, chapter three of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, such proposed amendment is hereby numbered "Amendment No. 1" and designated as the "Pension Bond Amendment" and the purpose of the proposed amendment is summarized as follows: "To amend the State Constitution to permit the issuance and sale of additional state general obligation bonds not exceeding five billion five hundred million dollars to help provide for the safety and soundness of the state teachers retirement system, the judges' retirement system and the public safety death, disability and retirement system. These additional state general obligation bonds will help the State to fund the unfunded actuarial accrued liabilities of these systems."
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate recessed until 5 p.m. today.
Upon expiration of the recess, the Senate reconvened and, at the request of Senator Chafin, unanimous consent being granted, returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Com. Sub. for Senate Bill No. 1003, Relating generally to ethical standards of governmental officials and employees.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on January 25, 2005;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Chafin, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 1003) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendments to the bill, from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:
On page fifteen, section four, line thirteen, after the word "filing." by inserting the following: A copy of the verified complaint shall also be sent to the respondent.;
On page thirty-seven, section five, line three, after the word "household" by changing the period to a colon and inserting the following proviso: Provided, That notwithstanding any provision of this chapter to the contrary, a legislator may not attend, during the period of any regular or extraordinary session, any event where food or beverages are offered at no cost which is sponsored by any person attempting to influence legislation.;
On page forty-two, section five, after line nineteen, by inserting a new subdivision, designated subdivision (4), to read as follows:
(4) As used in this subsection, a member of the Legislature who serves as chair, or who otherwise is responsible for the administration of a legislative committee, shall be considered as participating in the review or evaluation of a contract.;
On page fifty, section five, line eighteen, after the word "basis." by inserting the following: After the thirty-first day of December, two thousand five, no elected public official may receive compensation as an employee of a member of the Board of Public Works.;
And,
On page seventy-six, line one, by striking out the section caption and inserting in lieu thereof a new section caption, to read as follows:
§6B-3-11. Compliance audits.;
On motion of Senator Kessler, the following amendments to the bill were next reported by the Clerk, considered simultaneously, and adopted:
On page sixteen, section four, line twenty-three, by striking out the word "allegation of" and by inserting in lieu thereof the words "allegations contained in";
On page seventeen, section four, line three, after the word "manner" by inserting the word "as";
On page seventeen, section four, line seventeen, by striking out the words "the basis for an alleged violation of law" and inserting in lieu thereof the words "alleged to violate this chapter";
On page nineteen, section four, line six, after the word "provided" by inserting the word "in";
On page nineteen, section four, lines nineteen and twenty, after the words "any member" by inserting the words "or employee";
On page nineteen, section four, line twenty, by striking out the words "or its staff";
On page twenty, section four, line three, by striking out "(g)" and inserting in lieu thereof "(h)";
On page twenty-one, section four, lines one and two, by striking out the words "in the complaint filed with the Commission";
On page twenty-one, section four, line twenty-one, after the word "panel" by changing the comma to a period, striking out the words "and copies" and inserting in lieu thereof the word "Copies";
On page twenty-one, section four, line twenty-two, after the word "complainant" by inserting a comma and the words "if any,";
On page twenty-two, section four, line twenty-four, by striking out the words "of the Commission";
On page twenty-three, section four, line nine, after the words "manner and" by inserting the word "which";
On page twenty-four, section four, line eleven, by striking out the word "make" and inserting in lieu thereof the word "order";
On page twenty-six, section four, line twenty-four, after the word "with" by inserting the word "other";
On page twenty-seven, section four, line four, after the word "employee" by inserting the words "or former member or employee";
On page twenty-nine, section four, line nineteen, after the word "of" by striking out the word "the";
On page forty-nine, section five, line sixteen, by striking out the word "each" and inserting in lieu thereof the word "the";
On page forty-nine, section five, line seventeen, by striking out the words "office or job" and inserting in lieu thereof the words "offices or jobs";
On page fifty, section five, line fourteen, after the word "employee" by inserting the words "and his or her immediate supervisor";
On page fifty, section five, line sixteen, after the word "fact," by inserting the word "work";
On page fifty-three, section seven, line eleven, after the word "an" by inserting the word "ownership";
On page fifty-three, section seven, line twelve, by striking out the words "ownership interest";
On page sixty, section ten, line fifteen, by striking out the words "or respondent";
On page sixty-nine, section four, line fourteen, after the word "activities" by inserting the word "in";
On page sixty-nine, section four, line fourteen, by striking out the word "in";
On page seventy, section four, line six, after the word "activities" by inserting the word "in";
On page seventy, section four, line six, by striking out the word "in";
On page seventy, section four, line nine, after the word "activities" by inserting the word "in";
And,
On page seventy, section four, line nine, by striking out the word "in".
The following amendment to the bill, from the Committee on Finance, was next reported by the Clerk and adopted:
On page three, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §6B-1-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said Code be amended by adding thereto a new section, designated §6B-1-6; that §6B-2-1, §6B-2-2, §6B-2-4, §6B-2-5, §6B-2-7, §6B-2-9 and §6B-2-10 of said Code be amended and reenacted; that said Code be amended by adding thereto a new section, designated §6B-2-5b; that §6B-3-1, §6B-3-2, §6B-3-3a, §6B-3-4 and §6B-3-7 of said Code be amended and reenacted; and that said Code be amended by adding thereto two new sections, designated §6B-3-3b and §6B-3-11, all to read as follows:.
The bill (Com. Sub. for S. B. No. 1003), as amended, was then ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Engrossed Committee Substitute for Senate Bill No. 1003 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 1003) passed.
At the request of Senator Helmick, as chair of the Committee on Finance, and by unanimous consent, the unreported Finance committee amendment to the title of the bill was withdrawn.
On motion of Senator Helmick, the following amendment to the title of the bill was reported by the Clerk and adopted:
On pages one through three, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 1003--A Bill to amend and reenact §6B-1-3 of the Code of West Virginia, 1931, as amended; to amend said Code by adding thereto a new section, designated §6B-1-6; to amend and reenact §6B-2-1, §6B-2-2, §6B-2-4, §6B-2-5, §6B-2-7, §6B-2-9 and §6B-2-10 of said Code; to amend said Code by adding thereto a new section, designated §6B-2-5b; to amend and reenact §6B-3-1, §6B-3-2, §6B-3-3a, §6B-3-4 and §6B-3-7 of said Code; and to amend said Code by adding thereto two new sections, designated §6B-3-3b and §6B-3-11, all relating generally to the ethical standards of governmental officials and employees and disclosure of financial interests of such persons; defining certain terms; creating a special revenue account; clarifying membership qualifications for the West Virginia Ethics Commission; requiring service of a complaint upon respondent; providing for procedures with respect to the conduct of meetings of the Commission; describing the powers, duties and authority of the Commission; authorizing the Commission to share confidential information with law-enforcement agencies; providing for procedures with respect to the filing of complaints against persons subject to said chapter and the conduct of hearings with respect thereto; prohibiting a political party or officer, agent or employee of a political party from filing a complaint; providing a procedure for the initiation of an investigation upon the request of a Commission member without the filing of a formal complaint; prohibiting Commission members and staff from discussing or commenting on the substantive aspects or merits of a pending or impending investigation or complaint in certain circumstances; authorizing the Commission to collect costs from respondents found in violation of the Ethics Act; providing civil immunity for good faith complainants and sanctions for bad faith filings; clarifying the procedure for referring matters to a prosecuting attorney for criminal investigation and prosecution; providing for a two-year statute of limitations on filing complaints; curtailing investigation or processing of complaints against a public official or public employee who is also a candidate for elective office until after the election; providing ethical standards for elected and appointed officials and for certain public employees; clarifying the prohibition on use of public office for private gain; authorizing members of the Board of Public Works to solicit donations for certain regional or national organization conferences to be held in this state; prohibiting legislators from attending certain events designed to influence legislation; prohibiting a legislative committee chair from profiting from contracts reviewed in his or her capacity as chair; prohibiting public officials and public employees from receiving compensation from more than one publicly funded office or job in certain circumstances; prohibiting elected officials from employment with the Board of Public Works; penalties; requiring the Commission to provide ethical training for certain state officers and employees; requiring the filing of financial disclosure statements by certain public officials, public employees and candidates, the contents thereof and the time when such statements are to be filed; providing for the appointment of a special prosecutor to investigate allegations of criminal conduct in certain cases; providing for penalties for violations of said chapter; creating the offenses of concealing a material fact in the filing of a financial disclosure statement and disclosing confidential information in violation of a Commission order and setting the penalties therefor; providing for registration and reporting requirements for lobbyists; increasing lobbyist registration fees; requiring the Commission to provide lobbyist training courses; clarifying lobbyist reporting requirements; requiring registered lobbyists to file lobbying activity and expenditure reports three times each year; describing the duties of lobbyists and defining certain acts which are violations; and providing for compliance audits of lobbyist registration statements and disclosure reports.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 1003) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
On motion of Senator Chafin, the Senate recessed for five minutes.
Upon expiration of the recess, the Senate reconvened and resumed business under the fourth order.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 1004, Relating generally to workers' compensation.
With an amendment from the Committee on the Judiciary pending;
And has also amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on January 25, 2005;
And reports the same back with the recommendation that it do pass as amended by the Committee on the Judiciary to which the bill was first referred; and as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Chafin, unanimous consent being granted, the bill (S. B. No. 1004) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page one hundred forty-six, section three, line sixteen, after the words "industrial insurance" by inserting the following: Additionally, by the first day of May each year, the self-insured community shall be assessed a cumulative total of nine million dollars. The methodology for the assessment shall be fair and equitable and determined by exempt legislative rule issued by the workers' compensation board of managers.
The following amendments to the bill, from the Committee on Finance, were next reported by the Clerk, considered simultaneously, and adopted:
On page twenty-four, section four, after line twenty-one, by adding a new subdivision, to read as follows:
(g) The new taxes imposed by this section shall sunset and not be collectible with respect to the privilege for which the additional taxes are imposed upon and after the first day of the month following the month in which the Governor certifies to the Legislature that the revenue bonds issued pursuant to article two- d, chapter twenty-three of this Code have been retired and that the unfunded liability of the old fund has been paid or provided for in its entirety, whichever occurs last.;
And,
On page one hundred forty-six, section three, after line nineteen, by adding a new subsection, to read as follows:
(g) The new premiums surcharge imposed by subdivision (2), subsection (f) of this section shall sunset and not be collectible with respect to workers' compensation insurance premiums paid when the policy is renewed on or after the first day of the month following the month in which the Governor certifies to the Legislature that the revenue bonds issued pursuant to article two- d, chapter twenty-three of this Code have been retired and that the unfunded liability of the old fund has been paid or has been provided for in its entirety, whichever occurs last.
The bill (S. B. No. 1004), as amended, was then ordered to engrossment and third reading.
Senator Chafin moved that the constitutional rule requiring a bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Bowman, Caruth, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President)--25.
The nays were: Barnes, Boley, Deem, Guills, Harrison, McKenzie, Sprouse, Weeks and Yoder--9.
Absent: None.
So, less than four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule rejected.
On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, January 27, 2004, at 11 a.m.
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