WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

THIRD EXTRAORDINARY SESSION, 2005

FIRST DAY

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Charleston, W. Va., Monday, May 16, 2005

Pursuant to the proclamation of His Excellency, the Governor, the Honorable Joe Manchin III, dated the sixteenth day of May, two thousand five, convening the seventy-seventh Legislature of West Virginia in extraordinary session today (Monday, May 16, 2005), under the provisions of section seven, article seven of the Constitution of West Virginia, the Senate assembled in its chamber in the state capitol in the City of Charleston at 4 o'clock p.m., and was called to order by its President, the Honorable Earl Ray Tomblin.
Prayer was offered by the Honorable Steve Harrison, a senator from the eighth district.
On the call of the roll, the following answered to their names:
Senators Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, Yoder and Tomblin (Mr. President).
Thirty-two members having answered to their names, the President declared the presence of a quorum.
Executive Communications

Senator Tomblin (Mr. President) laid before the Senate the following proclamation from His Excellency, the Governor, convening the Legislature in extraordinary session, which was read by the Clerk:
STATE OF WEST VIRGINIA

EXECUTIVE DEPARTMENT

Charleston

A P R O C L A M A T I O N

By the Governor

I, JOE MANCHIN III, GOVERNOR of the State of West Virginia, by virtue of the authority vested in me by Section 7, Article VII of the Constitution of West Virginia, do hereby call the Legislature of West Virginia to convene in Extraordinary Session at four o'clock p.m. on the sixteenth day of May, two thousand five, in its chambers in the State Capitol, City of Charleston, for the sole purpose of considering and acting upon the following matters:
FIRST:A concurrent resolution opposing the proposed closing and realignment of National Guard and/or reserve facilities in the State of West Virginia.
SECOND:Legislation to provide for the temporary subsidization of incremental adjustments in the aggregate cost- sharing percentages of employees' Public Employees Insurance Agency premiums.
THIRD:Legislation to amend and reenact W. Va. Code §6-7-2, as contained in Enrolled Committee Substitute for Senate Bill No. 514, Chapter 203, Acts of the Legislature, Regular Session 2005, relating to the salaries of Governor, Attorney General, State Treasurer, State Auditor, Commissioner of Agriculture and the Secretary of State.
FOURTH:A concurrent resolution to authorize the issuance of up to $375 million of refunding bonds to pay off the principal of and interest on certain issued and outstanding safe road bonds issued pursuant to the Safe Roads Amendment of 1996.
FIFTH:Legislation to repeal W. Va. Code §20-11-5a, relating to a recycling assessment fee upon the disposal of solid waste.
SIXTH:Legislation to eliminate the Employee and Insurance Services Division of the Department of Administration and reassign duties currently assigned to the Commissioner of the Employee and Insurance Services Division.
SEVENTH:Legislation to amend the provisions of the West Virginia Code relating to the Judicial Retirement System.
EIGHTH:Legislation relating to municipal taxes and municipal pension and relief fund plans for policemen and firemen, authorizing a qualifying municipality to establish a defined contribution plan for policemen and firemen hired on or after a future date and authorizing a qualifying municipality to issue revenue bonds for the purpose of eliminating the unfunded actuarial accrued liability of an existing pension and relief fund plan for policemen and firemen.
NINTH:A supplementary appropriation bill to the Litter Control Fund, fund 3486, fiscal year 2006, organization 0313, of the Department of Environmental Protection account.
TENTH:A supplementary appropriation bill to fund 6394, fiscal year 2005, organization 0612, of the Department of Military Affairs and Public Safety account.
ELEVENTH:A supplementary appropriation bill to fund 0104, fiscal year 2006, organization 0100, of the Governor's Office account.
TWELFTH:A supplementary appropriation bill amending and reducing existing appropriations with regard to fund 0186, fiscal year 2006, organization 0201, of the Department of Administration; and funding fund 0595, fiscal year 2006, organization 0703, of the Department of Revenue.
THIRTEENTH:Legislation to authorize and appropriate the expenditure of public moneys to pay the expenses of this extraordinary session.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of Charleston, State of West Virginia, this the sixteenth day of May, in the year of our Lord, Two Thousand Five, and in the One Hundred Forty-Second year of the State.

JOE MANCHIN III,
Governor.
By the Governor:
BETTY IRELAND,
Secretary of State.

Senator Chafin offered the following resolution:
Senate Resolution No. 301--Raising a committee to inform the House of Delegates the Senate has assembled in extraordinary session.
Resolved by the Senate:
That a committee of three be appointed by the President to inform the House of Delegates that the Senate has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business for which the extraordinary session was called by His Excellency, the Governor.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Whereupon, the President appointed as members of such committee the following:
Senators Jenkins, Oliverio and Facemyer.
Subsequently, Senator Jenkins, from the committee to notify the House of Delegates the Senate has assembled in extraordinary session, and is ready to proceed with the business of the session, announced that the committee had discharged its duties.
A message from the House of Delegates, by
Delegates Cann, Palumbo and Armstead, announced that the House of Delegates has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business stated in the proclamation convening the Legislature.
Senator Chafin then offered the following resolution:
Senate Resolution No. 302--Raising a committee to wait upon the Governor.
Resolved by the Senate:
That a committee of three on the part of the Senate, to join with a similar committee on the part of the House of Delegates, be appointed by the President to notify His Excellency, the Governor, that at his call the Legislature has assembled in extraordinary session, with a quorum of each house present; and is ready to receive any communication or message he may be pleased to present under section seven, article seven of the Constitution of West Virginia, which provides that no business except that stated in his proclamation be considered.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Whereupon, the President appointed as members of such committee the following:
Senators Sharpe, Fanning and Boley.
A message from the House of Delegates, by
Delegates Pino, Mahan and Frich, announced that the Speaker had appointed them a committee of three to join with a similar committee on the part of the Senate to wait upon the Governor, under the provisions of Senate Resolution No. 302. Senate and House members of this select committee then proceeded to the executive offices.
Subsequently, Senator Sharpe reported that the joint Senate and House committee had performed the duty assigned to it.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced and read by their titles:
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3001
--
A Bill to amend and reenact §6-7-2 of the Code of West Virginia, 1931, as contained in chapter 203, Acts of the Legislature, regular session, 2005, as amended, relating generally to the salaries of the Governor, Attorney General, State Treasurer, State Auditor, Commissioner of Agriculture and Secretary of State; and effective dates.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3002
--
A Bill to repeal §20-11-5a of the Code of West Virginia, 1931, as amended, relating to a recycling assessment fee upon the disposal of solid waste.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3003
--
A Bill to amend and reenact §5-16-5 of the Code of West Virginia, 1931, as amended, relating generally to the subsidization of any incremental adjustment in the active state pool employees' portion of the aggregate cost-sharing percentages of premium between employers and employees between the first day of July, two thousand five, until the thirty-first day of December, two thousand five.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3004
--
A Bill supplementing and amending items of the existing appropriations from the State Fund, General Revenue, to a new item of appropriation designated to the Governor's Office, fund 0104, fiscal year 2006, organization 0100, supplementing and amending chapter sixteen, Acts of the Legislature, for the fiscal year ending the thirtieth day of June, two thousand six.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3005
-- A Bill supplementing, amending, reducing and increasing items of the existing appropriations from the State Fund, General Revenue, to the Department of Administration - Office of the Secretary, fund 0186, fiscal year 2006, organization 0201, and to the Department of Revenue - State Budget Office, fund 0595, fiscal year 2006, organization 0703, by supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand six.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 300
6-- A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand six, to a new item of appropriation designated to the Department of Environmental Protection - Litter Control Fund, fund 3486, fiscal year 2006, organization 0313, supplementing and amending chapter sixteen, Acts of the Legislature, regular session, two thousand five, known as the budget bill.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3007
-- A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand five, to the Department of Military Affairs and Public Safety - West Virginia State Police, fund 6394, fiscal year 2005, organization 0612, by supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand five.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3008
--A Bill to amend and reenact §8-13C-1 and §8-13C-9 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §8-13C- 14, all relating to the use of proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax; loss of authority to impose those taxes; authorizing a qualifying municipality, subject to meeting certain requirements, to close its existing pension and relief fund plan for policemen and firemen to those hired after a future date; authorizing a qualifying municipality, subject to meeting certain requirements, to establish a defined contribution plan for policemen and firemen hired on and after the future date; and authorizing a qualifying municipality, subject to meeting certain requirements, to issue revenue bonds for the purpose of eliminating the unfunded actuarial accrued liability of the existing pension and relief fund plan for policemen and firemen and to issue refunding bonds issued to refund, in whole or in part, bonds issued for that purpose.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3009
--
A Bill to repeal §5A-10-1, §5A-10-2 and §5A-10-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §5-10D-1 of said code; to amend and reenact §5-16-3 and §5-16-4 of said code; to amend and reenact §5A-1-2 of said code; and to amend and reenact §29-6-5 and §29-6-6 of said code, all relating generally to the elimination of the Employee and Insurance Services Division of the Department of Administration and reassigning certain duties; providing that the Secretary of the Department of Administration serves as a member of the Consolidated Public Retirement Board; providing that the Governor shall appoint the Director of the Public Employees Insurance Agency; providing that the Secretary of the Department of Administration serves as a member and as the chair of the Public Employees Insurance Agency Finance Board; providing that the Division of Personnel is continued within the Department of Administration; and providing that the Secretary of the Department of Administration serves as an ex officio member and chair of the State Personnel Board.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Government Organization.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 3010
--
A Bill to amend and reenact §51-9-1a, §51-9-4, §51-9-6, §51-9-6a, §51-9-6b and §51-9-7 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §51-9-6d, all relating generally to the judicial retirement system; increasing the contribution rate for certain judges from the first day of July, two thousand five, until the thirtieth day of June, two thousand ten; providing that judges appointed or elected for the first time as judge of a court of record after the first day of July, two thousand five, must have served fourteen years as a sitting judge to receive annual retirement benefits; changing the annual benefit calculations and retirement qualifications for all judges appointed or elected for the first time as judge of a court of record after the first day of July, two thousand five; changing the annual benefit calculations for the spouses and children of all judges appointed or elected for the first time as judge of a court of record after the first day of July, two thousand five; eliminating the ability of judges appointed or elected for the first time as judge of a court of record after the first day of July, two thousand five, to use prosecutorial service as qualifying service; providing that retired judges may hold a public office or trust for compensation from the State of West Virginia; and providing that retired judges are ineligible to participate in any other pension plan maintained by the State of West Virginia.
At the request of Senator Chafin, and by unanimous consent, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and referred to the Committee on Pensions; and then to the Committee on Finance.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate recessed until 6:30 p.m. today.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Senators Unger and Tomblin (Mr. President) offered the following resolution:
Senate Concurrent Resolution No. 301--Requesting the Base Realignment and Closure Commission reject the recommendations of the Secretary of the United States Department of Defense for closure of military facilities in West Virginia and the transfer of military aircraft to any other location.
Whereas, Donald Rumsfeld, Secretary of the United States Department of Defense, has recommended the closure of three military facilities in West Virginia and the transfer of C-130 aircraft currently maintained in West Virginia; and
Whereas, The Army Reserve centers in Huntington and Fairmont and the Navy-Marine Corps Reserve Center in Moundsville help provide economic stability and employment opportunities to many West Virginians; and
Whereas, The Air National Guard base at Yeager Airport in Charleston, home of the 130th Airlift Wing and the C-130 military aircraft, has been a longtime symbol of pride for many West Virginians. The 130th Airlift Wing provides roughly 1,000 jobs. The transfer of C-130 aircraft from the 130th Airlift Wing will cause the loss of more than 150 jobs; and
Whereas, As an already economically challenged state, West Virginia cannot stand to lose jobs as a direct result of the closing of military facilities and the transfer of C-130 aircraft; and
Whereas, C-130 aircraft provide assistance by delivering much- needed supplies, vehicles and troops to many areas of West Virginia and other parts of the nation that suffer disasters; and
Whereas, At a time when homeland security is a major issue, the security of West Virginia and its citizens will be threatened by the loss of C-130 aircraft; and
Whereas, Since the Korean War, C-130 aircraft have represented the great State of West Virginia in numerous conflicts, including the present war in Iraq; and
Whereas, West Virginians have always stood united in efforts to keep America strong. Per capita, more West Virginians have served in the armed forces of our nation than any other state in the union;
Whereas, The Legislature supports Senator Robert C. Byrd who is leading the congressional delegation, consisting of Senator John D. Rockefeller IV, Representative Alan B. Mollohan, Representative Shelley Moore Capito and Representative Nick J. Rahall II, in these efforts on the federal level; and
Whereas, As elected representatives of the citizens of West Virginia, it is the Legislature's constitutional duty to preserve and protect our citizens and their prosperity. The Legislature strongly requests that the members of the Base Realignment and Closure Commission reject the recommendations of Defense Secretary Donald Rumsfeld as they relate to closing any military facility and the transfer of any C-130 aircraft from West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Base Realignment and Closure Commission reject the recommendations of the Secretary of the United States Department of Defense for closure of military facilities in West Virginia and the transfer of military aircraft to any other location; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to President George W. Bush; Secretary of Defense Donald Rumsfeld; Chairman of the Base Realignment and Closure Commission Anthony Principi; Commission members James Bilhray, Philip Coyle, Admiral Harold W. Gehman, Jr., James V. Hensen, General James T. Hill, General Lloyd Newton, Samuel Knox Skinner and General Sue Ellen Turner; and West Virginia's congressional delegation.
Which, under the rules, lies over one day.
Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive) offered the following resolution:
Senate Concurrent Resolution No. 302--Providing for the issuance of not to exceed three hundred seventy-five million dollars of refunding bonds pursuant to the "Safe Roads Amendment of 1996", article two-g, chapter thirteen of the Code of West Virginia and article twenty-six, chapter seventeen of said code.
Resolved by the Legislature of West Virginia:
That safe road refunding bonds in the principal amount not to exceed three hundred seventy-five million dollars are authorized to be issued by the State of West Virginia and sold by the Governor during the fiscal year ending the thirtieth day of June, two thousand five; and, be it
Further Resolved, That the bonds shall be issued in registered form, in such denominations, maturing at such times and bearing such date or dates as the Governor may determine; and, be it
Further Resolved, That all such bonds shall be payable at the Office of the Treasurer of the State of West Virginia or at some bank in the city of Charleston to be designated by the Governor; and, be it
Further Resolved, That the bonds shall bear interest at rates and be payable in amounts as determined by the Governor; and, be it
Further Resolved, That the State Treasurer shall pay the principal and/or interest then due on the bonds to the registered owners thereon at the addresses shown by the record of registration; and, be it
Further Resolved, That the bonds shall be signed as provided in section two, article twenty-six, chapter seventeen of the Code of West Virginia; and, be it
Further Resolved, That the bonds may be redeemable on such date or dates prior to maturity as determined by the Governor; and, be it
Further Resolved, That the Governor shall sell the bonds herein mentioned at such time or times in such amounts, not exceeding the aggregate principal amount described above, at such prices during the fiscal year as he may determine necessary to provide funds for the purposes provided below; and, be it
Further Resolved, That the net proceeds of sales of all bonds herein authorized shall be paid into a special and irrevocable trust fund, separate and apart from other funds of the State of West Virginia, to be held in the custody of an escrow trustee to be designated by the Governor; and, be it
Further Resolved, That an irrevocable deposit of said moneys in trust for, and such moneys and the investments thereof, together with any income or interest earned thereon, shall be applied to the payment of the principal of and interest on certain issued and outstanding safe road bonds, to be selected by the Governor, as the same become due and payable; and, be it
Further Resolved, That this concurrent resolution shall rescind and supersede any and all prior resolutions or parts thereof inconsistent with this resolution, including, but not limited to, the concurrent resolution adopted on the ninth day of April, two thousand five, referred to as House Concurrent Resolution No. 93, which provided for the issuance of not to exceed three hundred seventy-five million dollars of refunding bonds pursuant to the "Safe Roads Amendment of 1996", article two-g, chapter thirteen of the Code of West Virginia and article twenty- six, chapter seventeen of said code.
At the request of Senator Chafin, and by unanimous consent, the resolution was taken up for immediate consideration and referred to the Committee on Finance.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 3008, Relating to municipal taxes and pension and relief fund plans for policemen and firemen; other provisions.
Now on second reading, having been read a first time and referred to the Committee on Pensions in prior proceedings today;
And,
Senate Bill No. 3010,
Relating to judicial retirement system .
Now on second reading, having been read a first time and referred to the Committee on Pensions in prior proceedings today;
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
The bills, under the original double committee references, were then referred to the Committee on Finance.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 3009, Eliminating Employee and Insurance Services Division of Department of Administration
.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 3009 (originating in the Committee on Government Organization)--A Bill
to repeal §5A-10-1, §5A-10-2 and §5A-10-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §5-10D-1 of said code; to amend and reenact §5-16-3 and §5-16-4 of said code; to amend and reenact §5A- 1-2 of said code; and to amend and reenact §29-6-5 and §29-6-6 of said code, all relating generally to the elimination of the Employee and Insurance Services Division of the Department of Administration and reassigning certain duties; reinstating the Secretary of the Department of Administration as a member of the Consolidated Public Retirement Board, the Public Employees Insurance Agency Finance Board and the State Personnel Board; providing that the Governor shall appoint the Director of the Public Employees Insurance Agency; providing that the Division of Personnel is continued within the Department of Administration; clarifying board member compensation and expense reimbursement; and making technical changes.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 3009) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time and ordered to second reading.
Pending announcement of a meeting of a standing committee of the Senate,
Senator Chafin then moved that the Senate adjourn until tomorrow, Tuesday, May 17, 2005, at 1 p.m.
The question being on the adoption of Senator Chafin's motion, and on this question, Senator Chafin demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Boley, Bowman, Caruth, Deem, Dempsey, Edgell, Foster, Guills, Harrison, Helmick, Jenkins, Lanham, Love, McCabe, Minard, Plymale, Prezioso, Sharpe, Weeks and Tomblin (Mr. President)--21.
The nays were: Barnes, Chafin, Facemyer, Fanning, Hunter, McKenzie, Minear, Oliverio, Sprouse, Unger and Yoder--11.
Absent: Kessler and White--2.
So, a majority of those present and voting having voted in the affirmative, the President declared Senator Chafin's motion had prevailed.
In accordance with the foregoing motion, the Senate adjourned until tomorrow, Tuesday, May 17, 2005, at 1 p.m.
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