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Sunday, September 11, 2005

                                             

     The House of Delegates met at 7:30 p.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 Saturday, September 10, 2005, being the first order of business, when the further reading thereof was dispensed with and the same approved.
     The following dialog relative to legislative and constitutional prerogatives of the House transpired, which was ordered printed in the Journal:
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     Speaker Kiss. Ladies and gentlemen, I want to touch on several subjects that obviously deal with the processing of House Bill 401. Obviously, I think each of us values our credibility every time we take the floor, so I want to begin by at least making clear a couple of points.
     As to how we intend to proceed in its entirety, I do not know. I am going to give you a lot more information here so it is just not that, but I do not know. Because I don't know what the Court is going to do, I don't know what the Senate's desires are yet, I hope to know that by the end of tonight, I don't know what the Governor's desires are yet, I hope to know that by the end of the night. The Majority Party is going to caucus as soon as this session is over this evening, we may be in caucus for an extended period of time. But, in a broader sense as to where we are going, I don't know.
     When I was made aware late Friday about the filing of the pleadings, I had an opportunity to review them and then spent a decent amount of time here Saturday reviewing the pleadings and looking at the law. I decided at that time that I thought that, at least for the time being, the best course of action for the House was to avoid losing days, thereby my main consideration was to keep from spending additional taxpayer money. Also, I decided that right now, while I have an opinion and I talked to other lawyers who have opinions, rather than try to determine ultimately what the Court might do or determine what this Legislature may or may not be able to do now or later, the best thing to do procedurally with the bill for as long as we could is nothing. That is the reason we read it a first time and recommitted it to the Finance Committee, and now reported it out a second time and recommitted it. Obviously, we are running out of time and need to make a decision. The decision initially was to step through those processes and move the bill along, but not do anything to the bill that might later exacerbate or provide additional legal arguments or fodder depending upon what the Court may or may not do, which obviously all of us at this point are speculating on.
     Having said that, probably two or three weeks ago, as many of you, I saw where this might be going and the only advantage of having an old Speaker is the institutional knowledge that you develop and maybe the advantage of having an even older Parliamentarian is the institutional knowledge that he has. So I decided at that time to avail ourselves of that knowledge and asked him to begin some research, not necessarily with marching orders to come to certain conclusions, but to begin research to see what this entity, this House that we are all so proud to be part of, what its institutional history tells us. The reason that I did that, and at that time I didn't think about or anticipate a lawsuit, but what I thought was important, as I do on most of these questions, what we should do is honor the institution, the House of Delegates, the Legislature, and look to its precedents to guide us as to how we handle these things in the future. As I stand up there in the Chair I might be called on from time to time to make rulings, but just as in Court if I am doing my job I think I have some obligation as to how we do that. We do that by looking at our rules, if they are silent or ambiguous we look at Jefferson's Manual, we look at our prior practice and procedure. That is how we look at this for guidance and believe it or not, as with most things, very few things are new under the sun. The documentation which reflects this pattern and practice is there for all of us to look at and review. Anyone else could have been doing this same research or review for the last several weeks, and I don't mean to take a shot at the Press. I love you all dearly, but the Press could have, it's there. I mean it is there, the practice and procedure as to how we have handled this issue in the past is there. That goes again for every member. Every member, any citizen could have reviewed that. Where is it? It is in our Journal. Why do you think we keep the Journal for every day? Why do you think it reflects prior decisions and rulings of the Chair?
     When we did that what we found was that these prior practices are a part of the pleadings and answer that the Legislature filed with the Supreme Court yesterday, they are there and they are available to each and everyone of you. If you don't want to get them that way, I can get copies for you here. The reason I didn't do it sooner was I was hoping to use every minute to do as full a review as the Clerk could do, so we wouldn't miss anything. We are talking about our Journals for how many years going back?
     What we found was a number of instances where I believe this House was faced with a question. The question being what does this House do, and I am talking now about this House's precedents. We did not research the Senate's precedent or precedents from other states, what does this House do when faced with the question, is the Governor's Call structured in a formal manner which, the argument can be developed, limits us or prohibits us from taking up bills or amendments or resolutions. Now, I want to say this: The Clerk, as usual, did an outstanding job in my opinion. He found what was there and I believe he found everything that was there, but nobody's perfect, but what I am saying is that I am not hiding anything. The Clerk gave me what he found and now I am giving you what we found and I have given the Supreme Court what we found in our pleadings and response. Now that I am making my point, because you have a right to know, again these are the kind of procedural things that chief officers of the House, and I am not complaining, it is just part of our job, but we had to make some decisions about what kind of pleadings we were going to file with the Court. We have done that, basically in lay terms what our pleadings with the Courts say to the Court, respectfully, you can't bring us, the Legislature, in front of you because we are in session and perhaps other arguments at some point, but our main argument right now is that we are in session and cannot be brought before the Court for adjudication of these issues. Perhaps at a later date. Now there is a bunch of other legal constitutional issues that, as I understand it, are being raised in the Executive Branch's pleadings, but at this point all the Legislature is saying is that you can't make us do this. We are immune. Literally, if you follow the argument through, theoretically we could be in front of the Court all the time and how would we do our business? How are we going to know how to deal with a particular item? I don't want to and I am not going to debate the constitutional issues which will probably be debated tomorrow at 9:00 a.m., but for right now the Legislative pleadings in lay terms basically say, respectfully, you do not have the right to bring us before you. The main reason being asserted at this point, and there may be other reasons, but the main reason being asserted is that we are in session.
     So, getting back to the Journal, what did we find? It may not surprise any of you that we found it hasn't been handled the same way all the time, but it appears there is a preponderant pattern as to how it was handled. In two instances when the point was raised, when the Chair ruled, as I would in other procedural inquiries of the Chair, that the bill or resolution, or by the same logic the amendment, was out of order and cannot be ruled on. At one time it appears that it was in order. I don't think in either of those instances it was appealed. But the preponderant of the decisions are as follows:
     1958, House Bill 10, page 108 of the House Journal:
     "Mr. Richardson raised the point of order that the bill did not come within the purview of the proclamation of the Governor stating business to be considered by this session of the Legislature and for this reason cannot properly be considered.

     The Speaker stated the point of order raised the question as to the constitutional right of the Legislature to consider the proposed legislation at this session and, for this reason, he was submitting the point of order to the House for its decision."

      The Speaker, in that instance, and the two or three others that I will review very quickly here, did not make a ruling. The Speaker said the question is, is our constitutional prerogative as a separate, distinct branch of government with the right to govern ourselves, by ourselves, with no one else interfering with that whether it be the executive or the court, is a decision for us to make. And, I would suggest to you that if we ever lose that power or deviate from it, we are no longer a coequal branch of government. We can call ourselves whatever we want, but we are not. It is a decision for this House and the House across the way to make and yes, to some extent with the debate that has swirled in the papers the last couple of days and the pleading, we are not talking about a procedural vote, but the House decided by a majority vote whether or not they believed our constitutional prerogatives were being trampled upon by the Executive. To put it more succinctly, and again I say this, obviously each of us knows we are immune from anything we say on this floor, but I am a practicing attorney and I have the utmost respect for the Supreme Court and I say this respectfully: We do not need the Supreme Court of this state to protect our constitutional prerogatives. We can do that ourselves. The way we do it is through that procedure.
     In 1958 again, House Bill 32, page 133 of the House Journal:
      "Mr. England raised the point of order that the bill was out of order and could not be considered at this session of the Legislature for the reason that it did not come within the preview of the proclamation of the Governor stating business to be considered at this session.
          The Speaker stated that he was advised by the Parliamentarian that there was ample authority and precedent for referring such questions of order to the House for its decision thereon.
          It was then submitted to the House."
      House Bill 41, 1958, page 261 of the House Journal, on second reading:
      "Mr. Tompos raised a point of order that the bill was out of order and could not be considered at this session of the Legislature for the reason that it did not come within the preview of the proclamation of the Governor stating business to be considered at this session.
          The Speaker stated that in keeping with the practice during this session relative to such points of order he was submitting such point of order to the House for its decision."
      Now, again because I want everybody to understand this, particularly in lay terms if I can do that, although I don't think lawyers can ever explain things in lay terms, we have warped minds and think differently, each of these that we found talk about instances of proclamation or a bill which was clearly, the Chair made that determination and the documentation is there you can go back and pull that documentation if you want to look at it, clearly outside the parameters of the Call. The way that I am looking at this is that I see no difference in that and the consideration of an amendment, and I find no precedent which treats amendments differently. If the amendment which the result of its adoption would be to create a bill which is clearly outside of the Call. Again, as I go through this, I am not suggesting to you that the Governor can say don't go there, don't touch that, it is clearly outside the Call. I am saying that now as a matter of factual analysis. The important thing is that we have a process - we have had it for years - that deals with this issue and I have explained how that process has worked and I have found some instances where the Chair ruled and that ruling was not appealed. The Chair basically decided and did not even have the House make the decision.
     So, where are we? Again, I don't want anyone to misunderstand my statements here because I don't know where this institution is going in the next several days or day and I don't know what the Executive Branch is going to do and I don't know what the Supreme Court is going to do. But, I want each of you to know and I will tell you now, that it is my intention, if such a point of order is raised, to rule in the manner that I see to be the preponderant practice of this House, which is that the House will decide whether a bill, a resolution or an amendment, is outside of the Call of the Proclamation of the Governor. That is how we will make the decision as to each proposed question, assuming that we get to the point of being faced with making that decision. I know of no other way to do it and I suggest, again I apologize, I was not taking a shot at the Press before, I respect you and I need and want your help, because I have a bunch of debate now in the Court as to what the Executive can do or can't do and how they can frame their Call and how they can't frame their Call and if they can tie our hands and if they can twist us up in knots and whether they can do this and do that. What I am suggesting to you is from our standpoint and if you allow it to be relevant, now I can't avoid speaking as a lawyer, from a constitutional perspective then don't pretend that we are a separate and distinct branch of government. I am sure those of you with even more expertise are thinking what happens if the Court can't do it and you do it this way? I don't know. Maybe at some point you have a constitutional crisis, but it is my intention as Speaker, if I am faced with this question, I want you to know where this is going and what I intend to do. I intend to present the procedural question to the House and then we proceed further. The precedent is there, anyone can look at it. If there is other precedent, I will be glad to respond to it. Again, I think the Clerk did an outstanding job and I am giving you the precedent that he was able to determine for me.
     Delegate Trump. First of all, it is always a pleasure to have you on the floor and making remarks, very illuminating. Let me say from the outset, Mr. Speaker, I think you are right. I think the question of whether or not the Governor's Call encroaches upon legislative prerogative is a question that has to be answered in the first instance by the Legislature. I will second the praise you have heaped on the researching skills of our Parliamentarian and Clerk and observe that 1958 must have been a very tough year around here. I found one from 1932 which I gather was equally tough. I think it is a completely reasonable approach to let the House decide that question in the first instance.
     Let me lead up to a question which is this, we have a bill on second reading which is the normal stage when the members have a right to amend and, as you know, there may be some amendments offered to that bill of great interest to a number of members who don't want to lose the opportunity to amend that bill and have it passed in a form that many think would be a great benefit to the citizens of West Virginia. Is there any assurance that you could give us tonight that an opportunity passed tonight would not be lost forever in the days remaining of this extraordinary session?
     Speaker Kiss. Again, getting back to my opening comments, the respect that you voice I share immensely, I respect you and your credibility tremendously and I am not going to jeopardize mine, so, no I cannot give you that assurance and I'll tell you why. I really ought to have some better sense as to where the Court is going. Having said that, and this is my opinion and I've talked about it to some of the leadership, we can't stay here and talk about this for several days waiting for some further decision from the Court. My fear is this, if we proceed right now, I've already voiced to you my concern that I'm not sure exactly what this stay means and what its implications might be, but it is a temporary stay, I don't know whether the Court is going to make it permanent or not. As I read it, I think what the Court is attempting to do is to say to the Legislature and certainly to myself and the Senate President as Chief Executive Officers of these bodies, that you are to ignore part of the Call. My concern is this, and you can tell from what I have just gone through, I don't think they can do that. I am tremendously uncomfortable with proceeding under that assumption and if we are going to have to do that I would prefer that it be done once a decision is made that that is a permanent stay. Because my fear is to act now and make these decisions in rulings now, at some point we can't keep waiting, but to make those decisions and rulings now to some extent is under the gun of intervention by the Court.
     Delegate Trump. A concern I have now and it has been voiced by others and I would ask you to comment on it or basically just acknowledge it, we have no way of knowing as we are here tonight or controlling, or should we have any way of controlling, how long the Supreme Court will take to resolve or render an opinion or decision on any question it takes under its consideration.
     Speaker Kiss. I understand that.
     Delegate Trump. To the extent that we are in accord on this fundamental threshold question, it should be the House of Delegates who decides for itself in the first instance, at least, whether or not it can act in a certain area based on a proclamation from the executive without interference by the executive or the judiciary. Would that not suggest that there is no time like the present, Mr. Speaker, and we ought to forge ahead now and resolve that question to the extent we can for ourselves?
     Speaker Kiss. At some point I would agree with you and I am not there yet but let me suggest this logic for that, and not to insinuate that I am not willing to do this and decided what I think is the right thing and are afraid to do it. But I see, in lay terms, an outside analysis were we to proceed, or in editorial terms or in political terms, someone asserting that I or this House, if we proceed now given this stay that is in place, may be in contempt of the Court. That may be where we wind up but I would prefer at least to wait some short, additional period of time to see if that is where this is going. I think as a lawyer, and maybe you do disagree to this, but I think someone could at least, maybe not so much as a matter of law, but even as a matter of law, pose the argument that if we were to proceed this way tonight, given the status that is before the Court that we are ignoring and showing disrespect for and contempt of the stay which is in place.
     Delegate Trump. But that almost presumes, does it not, that there is some authority for a stay? I don't mind saying on the floor of this House, pending litigation notwithstanding, I question the authority of the Judiciary to impose any stay on the operation of the Legislative Branch of government. To render unconstitutional by judgment acts of the Legislature, absolutely. As the final arm of the Constitution, but to stop part of the process...... But having said that, as I read the petition to show cause issue and I read it today, its operation, as I read it was designed to be on the executive or at least a portion of the Governor's Proclamation as opposed to upon the Legislature or the legislative leadership itself.
     Speaker Kiss. Again, I am not being argumentative. I think that is a fair reading but I also think that another fair reading is the fact that the Senate President and I are joined as parties and that the Court may take the position that the temporary stay is effective to us as it is to the Executive. I don't know the answer to that and I don't know whether or not I'll have any more guidance or understanding or when I'll have any more guidance or understanding.
     Delegate Trump. One of the things that members have expressed concern to me about is the possibility that if the bill is referred back to a committee it may not reach the floor again, that is a great concern at the moment. I understand procedure and I think that is a fair concern for those who have voiced it who believe very strongly that forward movement on the merits of the issue is real important to the State.
     Speaker Kiss. That may obviously happen, I am not going to deny that and obviously and I take no offense if the gentleman wants to back up and post an objection, but I have given my reasons earlier why I decided forty-eight hours ago to approach it this way because I am also trying to, as long as possible, put the bill in a lockbox and not touch it, not do anything to it until I have further clear guidance on what may be happening. I agree with your comments earlier and we both agree that the Supreme Court does not have the authority to enjoin us........
     Delegate Trump. You got much closer than I ever did. I would remind you too that.........
     Speaker Kiss. But, the simple fact as we stand here is that is what they have done. There may be some debate as to who it is that stay acts to, but I know from a standpoint of looking at the pleadings, as I know you do as an attorney, the parties which are the respondents is the executive, myself and the Senate president.
     Delegate Trump. Let me ask you this and I am free forming here, just thinking out loud which is always dangerous, but is there anything offensive to you in the possibility of instead of referring it to a committee, just having it remain on the Calender over a pending legislative day and having it come up tomorrow on second reading, regular order of business and with whatever is there pending? In other words with a unanimous consent request, we have done it before, having it lie over a day retaining its place on the calender.
     Speaker Kiss. The only thing I would say there and maybe there are things I am not thinking of right now on my feet is that it is somewhat inconsistent, although I am not saying we have never done it this way before, with the bill having been referred to the Committee, and the ability to make the threshold decision as to whether you are going to allow the Committee to work the bill first, or whether we just don't have any time or options anymore. That decision, as least as from where I sit, talking with my leadership has not been made yet. We have talked about a number of different possibilities, one would be to report it with the amendments pending. There is not an intention here, assuming we get to the point of going through the amendments and trying to end run them so to speak, having said that I have laid out very clearly, I think, that this procedural hurdle, first as to perhaps certain amendments we may be faced with, but if there is any hope of the Committee working the bill the only way that is only going to happen is if we send it back to the Committee.
     Delegate Trump. That could be done a day hence if it is the intention of the leadership to have it worked in Committee. I assume it is not the intention of the leadership to have it worked extensively in Committee between now and sometime tomorrow when, perhaps, we will have some decision or ruling from the Court. What would be lost by leaving it in its current place on the Calender until tomorrow's session.
     Speaker Kiss. I am not sure I understood your last point there but the assumption may be in error. I mean, I am looking at either some decisions need to be made in the next several hours which certainly can be made by tomorrow morning and one of those decisions may very well be for me to give my best guidance and instruction to the Finance Chair to begin working the bill and if it is not up there he can't do that and we can come back in tomorrow and do it, but you know as well as I do that there are a number of other things in play and the decision we made is that it is better to do this by sending it back upstairs. It is up there, it has been read a second time, it can come back down on third reading, that is the practice and procedure that we would prefer to follow right now, and that is the decision we made. I don't take offense if you think it should be done differently but that is the course we have decided to pursue.
     Delegate Trump. Thank you for answering my questions.
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Committee Reports

      Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has given further consideration to:
     H. B. 401, Reducing the six percent sales tax on food and food ingredients intended for human consumption to five percent beginning January 1, 2006,
     And reports the same back without recommendation as to its passage but with the recommendation that it be recommitted to the Committee on Finance.
     Delegate Staton asked unanimous consent that the bill be taken up for immediate consideration, read a second time and advanced to third reading, and that the bill then be recommitted to the Committee on Finance.
     Delegate Trump raised an objection thereto.
     Whereupon,
     Delegate Staton then moved that the bill be taken up for immediate consideration, read a second time and advanced to third reading and that the rule be suspended to permit amendment thereof on third reading, and that the bill then be recommitted to the Committee on Finance.
     Subsequently,
     Delegate Staton asked and obtained unanimous consent that the foregoing motion be withdrawn.
     Delegate Staton then moved that the bill be taken up for immediate consideration, read a second time and then recommitted to the Committee on Finance.
     On the foregoing, Delegate Lane demanded the yeas and nays, which demand was sustained.
     The yeas and nays having been ordered, they were taken (Roll No. 814), and there were--yeas 64, nays 34, absent and not voting 2, with the nays and absent and not voting being as follows:
     Nays: Anderson, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Duke, Ellem, Evans, Frich, Hall, Hamilton, Howard, Hunt, Lane, Leggett, Louisos, Overington, Porter, Roberts, Romine, Rowan, Schadler, Schoen, Sobonya, Stevens, Sumner, Tansill, Trump, Wakim, Walters and G. White.
     Absent and Not Voting: Ferrell and Morgan.
    So, a majority of the members present and voting having voted in the affirmative, the motion was adopted.
     The bill still being before the House, Delegate Staton then asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of amendments to the bill on third reading, when it reaches that stage on the Floor of the House.
     H. B. 401 was then taken up for immediate consideration, read a second time and advanced to third reading, with the right to amend on that reading, and the Speaker recommitted the same to the Committee on Finance.
      Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration:
     H. B. 417, Making a supplementary appropriation to the West Virginia Conservation Agency, to the Department of Health and Human Resources, Division of Human Services, etc.,
     And reports back a committee substitute therefor, with the same title as follows:
     Com. Sub. for H. B. 417 - "A Bill making a supplementary appropriation of public moneys out of the treasury from the balance of moneys remaining as an unappropriated surplus balance in the state fund, general revenue, to the Joint Expenses, fund 0175, fiscal year 2006, organization 2300, to the Supreme Court, fund 0180, fiscal year 2006, organization 2400, to the West Virginia Conservation Agency, fund 0132, fiscal year 2006, organization 1400, to the Department of Commerce - West Virginia Development Office, fund 0256, fiscal year 2006, organization 0307, to the Department of Education - State Department of Education, fund 0313, fiscal year 2006, organization 0402, to the Department of Health and Human Resources - Office of the Secretary, fund 0400, fiscal year 2006, organization 0501, to the Department of Health and Human Resources - Division of Human Services, fund 0403, fiscal year 2006, organization 0511, to the Department of Military Affairs and Public Safety - Division of Veterans' Affairs, fund 0456, fiscal year 2006, organization 0613, and to the West Virginia Council for Community and Technical College Education - Control Account, fund 0596, fiscal year 2006, organization 0420, by supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand six,"
     With the recommendation that the committee substitute do pass.
     At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for H. B. 417) was taken up for immediate consideration, read a first time and then ordered to second reading.
     At 9:06 p.m., on motion of Delegate Staton, the House of Delegates recessed until 10:00 p.m., and reconvened at that time.
     Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration:
     S. B. 4014, Making a supplemental appropriation to the lottery commission - excess lottery revenue fund surplus,
     And,
     H. B. 407, Providing that department secretaries may transfer employees between departments in certain instances,
     And reports the same back, with amendment, with the recommendation that they each do pass.
     At the respective requests of Delegate Staton, and by unanimous consent the bills (S. B. 4014 and H. B. 407) were each taken up for immediate consideration, read a second time and advanced to third reading, and the rule was suspended to permit the offering and consideration of amendments thereto on third reading.
     Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration:
     H. B. 420, Expiring funds into the unappropriated surplus balance in the state fund, general revenue, and supplementing and increasing an item of appropriation in the aforesaid account,
     And reports the same back with the recommendation that it do pass.
     At the respective requests of Delegate Staton, and by unanimous consent, the bill (H. B. 420) was taken up for immediate consideration, read a first time and then ordered to second reading.
     On motion for leave, a bill was introduced (Originating in the Committee on Finance and reported with the recommendation that it do pass), which was read by its title, as follows:
By Delegates Michael, Doyle, Stalnaker, Browning, H. White, Boggs, Proudfoot, Frederick, Border, Ashley and Wakim:

     H. B. 422 - "A Bill making a supplementary appropriation of public moneys out of the treasury from the balance of moneys remaining as an unappropriated balance in the state fund, general revenue, to the department of administration - consolidated public retirement board, fund 0195, fiscal year 2006, organization 0205."
     At the respective requests of Delegate Staton, and by unanimous consent, the bill (H. B. 422) was taken up for immediate consideration, read a first time and then ordered to second reading.
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
      S. B. 4006 - "A Bill to amend and reenact §12-4-14 of the Code of West Virginia, 1931, as amended, relating to accountability of persons receiving state funds or grants; requiring reports or sworn statements by volunteer fire departments; giving Secretary of the Department of Administration rule-making authority; and providing criminal penalties for filing a fraudulent sworn statement of expenditures, a fraudulent sworn statement or a fraudulent report."
     At the respective requests of Delegate Staton, and by unanimous consent, reference of the bill (S. B. 4006) to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
     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. 4008 - "A Bill to amend and reenact §18A-4-2 and §18A-4-8a of the Code of West Virginia, 1931, as amended, all relating to salaries for teachers and school service personnel; adopting state minimum salary schedules for teachers; providing for incremental salary increases for teachers; and providing minimum pay grade scales for school service personnel."
     At the respective requests of Delegate Staton, and by unanimous consent, reference of the bill (S. B. 4008) to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
     H. B. 403, Providing for a technical correction relating to benefits of spouses and children of stat troopers who die in the line of duty.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
     S. B. 405, Changing West Virginia's Unemployment Compensation law to conform it to federally mandated legislation.
     A message from the Senate, by
     The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
     S. C. R. 401 - "Requesting the Division of Highways name the portion of W. Va. Route 16 between Glen Jean and Oak Hill, Fayette County, the 'Hank Williams, Sr., Memorial Road'."
     Whereas, Hank Williams, Sr., traveled the portion of W. Va. Route 16 between Glen Jean and Oak Hill, Fayette County, shortly before his death near Oak Hill on the night of December 31, 1952; and
     Whereas, The haunting melodies created by Hank Williams, Sr., have touched the souls of so many throughout the United States; and
     Whereas, The contributions of Hank Williams, Sr., have helped propel country music into the billion-dollar industry it is today; therefore, be it
     Resolved by the Legislature of West Virginia:
     That the Legislature hereby requests the Division of Highways name the portion of W. Va. Route 16 between Glen Jean and Oak Hill, Fayette County, the "Hank Williams, Sr., Memorial Road"; and, be it
     Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and the Governor.
House Calendar

Unfinished Business

     The following resolutions, coming up in regular order, as unfinished business, were each reported by the Clerk and adopted:
     H. C. R. 401, Naming the bridge on Cleveland Avenue in Buckhannon, West Virginia, the "William S. O' Brien Memorial Bridge",
     H. C. R. 402, Naming the bridge located 0.01 miles south of County Route 26 and located on Route 85 in the community of Van, West Virginia, the "Thom Cline Memorial Bridge",
     H. C. R. 403, Requesting the Division of Highways to name the bridge in Curtin, West Virginia, the "Larry 'Joe' Markle Bridge",
     H. C. R. 404, Naming the new Watson Bridge over the West Fork River on U. S. Route 250 in Fairmont, Marion County, West Virginia, the "Watson Senior Citizens Bridge in Honor of Jim Costello",
     H. C. R. 405, Naming the section of West Virginia Route 16 from the intersection of West Virginia Route 16 and West Virginia Route 5, North to the Ritchie County line the "Sheriff Park D. Richards Memorial Highway",
     H. C. R. 406, Requesting the Division of Highways to name the bridge at McCauley in Hardy County, West Virginia, the "John and Freda Rudy Memorial Bridge",
     H. C. R. 407, Requesting the West Virginia Division of Highways to name the bridge located at U. S. Route 2 and Nine Mile Road in Cabell County, West Virginia, the "David Rickey Carson Memorial Bridge",
     H. C. R. 408, Honoring the late Leonard R. Valentine by declaring the bridge numbered 54 - 1.60 on State Route 54 in Mullens, West Virginia the "Leonard Valentine 'Coach Val' Memorial Bridge",
     H. C. R. 409, Requesting the West Virginia Division of Highways to name the bridge on I-64 at the intersection of Rt. 219 in Lewisburg, Greenbrier County, West Virginia the "Gary Wayne Martini Memorial Bridge",
     H. C. R. 410, Requesting the Division of Highways name the bridge located on Jakes Run Road off Frame Road in Elkview, West Virginia, the "Private James C. Summers Memorial Bridge",
     H. C. R. 411, Requesting the Division of Highways name Bridge 4827 the "Sergeant George F. Eubanks Memorial Bridge",
     H. C. R. 412, Requesting the Division of Highways to name the bridge on County Rt. 13, Arnett, Raleigh County, West Virginia at the end of Posey Saxon Road, the "Sergeant Billy Ray Holmes Memorial Bridge",
     H. C. R. 413, Requesting the West Virginia Division of Highways to name State Route 25 from Glen Jean to Thurmond in Fayette County the "Jon Dragan Road",
     And,
     H. C. R. 414, Requesting the Division of Highways to name the bridge spanning the Gauley River on Route 39 near Summersville, Nicholas County, the "Brock's Bridge".
     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. 402, Requiring the disclosure of electioneering communications and prohibiting political organizations from accepting contributions in excess of one thousand dollars per election; on second reading, coming up in regular order, was read a second time.
     Delegates Sobonya, Carmichael, Ashley, Lane, Wakim, Moore, Overington, Howard, Sumner, Frich, Porter, Duke, Rowan, Blair, Border, Canterbury, Armstead, Evans, Hamilton, Romine, Leggett, Azinger, Hall, Ellem, Roberts, Schoen, Tansill, Stevens, Schadler, Walters, Anderson and Trump moved to amend the bill on page fifty-one, section twelve, after line one hundred thirty-four, by adding a new subsection to read as follows:
     "(n) No candidate who is also an elected or appointed official may use public funds, including funds of the office held by the candidate, to distribute, disseminate, publish or display their name or likeness upon or in any publication, broadcast, cable or satellite communication, communication in any newspaper, magazine or periodical publication, communication sent by mass mailing, communication by telephone bank or communication by leaflet, pamphlet or flyer, or any other publication or media communication intended for general dissemination to the public, within sixty days before a primary or general election in which the elected or appointed official is a candidate. This subsection does not prohibit an elected or appointed official from using their name or likeness on:
     (1) any official record or report, directory, letterhead, document, map or certificate issued in the course of their duties as an elected or appointed official; or
     (2) promotional materials used for national tourism and economic development promotion; or
     (3) leaflets, pamphlets, or booklets containing information regarding services provided by the office of the elected or appointed official distributed prior to sixty days before the primary or general election or distributed to a member of the public upon his or her request",
     And, to renumber the remaining subsections accordingly.
      On the adoption of the amendment, Delegate Blair demanded the yeas and nays, which demand was sustained.
     The yeas and nays having been ordered, they were taken (Roll No. 815), and there were--yeas 32, nays 65, absent and not voting 3, with the yeas and absent and not voting being as follows:
     Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Duke, Ellem, Evans, Fragale, Frich, Hall, Hamilton, Howard, Lane, Leggett, Overington, Porter, Roberts, Romine, Rowan, Schadler, Schoen, Sobonya, Stevens, Sumner, Tansill, Trump, Wakim and Walters.
     Absent and Not Voting: Ferrell, Morgan and G. White.
    So, a majority of the members present and voting having not voted in the affirmative, the amendment was not adopted.
     The bill was then ordered to engrossment and third reading.
     Com. Sub. for H. B. 408, Relating to the accountability of persons receiving state funds or grants; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Com. Sub. for H. B. 409, Relating to salaries for teachers and school service personnel; on second reading, coming up in regular order, was read a second time.
     Delegates Duke, Trump, Blair, Overington and Roberts moved to amend the bill on page eleven, section two, line two hundred fifty-seven, by after the period by adding a new subsection, designated subsection "(e)", to read as follows:
     "(e) Beginning on the first day of the second quarter of the teachers employment term in the school year two thousand five-two thousand six through the thirtieth day of June, two thousand eight, each teacher who resides in a county in which the average monthly mortgage payment upon residential property is equal to or greater than seven hundred thirty-five dollars as determined by the bureau of census of the United States department of commerce in the taking of the two thousand census of population shall receive an annual housing allowance supplement to determined according to the following:
Average monthly mortgage Housing allowance supplement
    $735.00 to $745.00 $ 300.00
     $745.01 to $760.00 $ 600.00
     $760.01 to $790.00 $ 900.00
     $790.01 to $820.00 $1200.00
     $820.01 to $850.00 $l500.00
     $850.01 to $890.00 $l800.00
     $890.01 to $930.00 $2100.00
     $930.01 and above $2400.00
The payments shall be made in equal monthly installments and shall be considered a part of the state minimum salaries for teachers: Provided, That any housing allowance supplement that a teacher is entitled to receive as a result of the enactment of this section shall not be paid until the first pay date after the first day of November, two thousand five."
   On the adoption of the amendment, Delegate Overington demanded the yeas and nays, which demand was sustained.
  The yeas and nays having been ordered, they were taken (Roll No. 816), and there were--yeas 18, nays 79, absent and not voting 3, with the yeas and absent and not voting being as follows:
  Yeas: Armstead, Azinger, Blair, Doyle, Duke, Ellem, Frich, Howard, Lane, Overington, Roberts, Schadler, Sobonya, Stevens, Tabb, Trump, Walters and Wysong.
  Absent and Not Voting: Ferrell, Leggett and Morgan.
 So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.
  The bill was then ordered to engrossment and third reading.
  Com. Sub. for H. B. 411, Relating to amending certain provisions of the code involving horse and dog racing and distribution of certain proceeds; on second reading, coming up in regular order, was read a second time.
  On motion of Delegates Doyle and DeLong, the bill was amended on page four, after the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:   "That §19-23-9, §19-23-13b and §19-23-13c of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §29-22A-10b of said code be amended and reenacted, all to read as follows:
CHAPTER 19. AGRICULTURE.

ARTICLE 23. HORSE AND DOG RACING.
§19-23-9. Pari-mutuel system of wagering authorized; licensee authorized to deduct commissions from pari-mutuel pools; retention of breakage; auditing; minors.

          (a) The pari-mutuel system of wagering upon the results of any horse or dog race at any horse or dog race meeting conducted or held by any licensee is hereby authorized, if and only if, such pari-mutuel wagering is conducted by the licensee within the confines of the licensee's horse racetrack or dog racetrack, and the provisions of section one, article ten, chapter sixty-one of this code, relating to gaming shall not apply to the pari-mutuel system of wagering in manner and form as provided for in this article at any horse or dog race meeting within this state where horse or dog racing shall be permitted for any purse by any licensee. A licensee shall permit or conduct only the pari-mutuel system of wagering within the confines of the licensee's racetrack at which any horse or dog race meeting is conducted or held.
          (b) A licensee is hereby expressly authorized to deduct a commission from the pari-mutuel pools, as follows:
          (1) The commission deducted by any licensee from the pari-mutuel pools on thoroughbred horse racing, except from thoroughbred horse racing pari-mutuel pools involving what is known as multiple betting in which the winning pari-mutuel ticket or tickets are determined by a combination of two or more winning horses, shall not exceed seventeen and one-fourth percent of the total of the pari-mutuel pools for the day. Out of the commission, as is mentioned in this subdivision, the licensee: (i) Shall pay the pari-mutuel pools tax provided for in subsection (b), section ten of this article; (ii) shall make a deposit into a special fund to be established by the licensee and to be used for the payment of regular purses offered for thoroughbred racing by the licensee, which deposits out of pari-mutuel pools for each day during the months of January, February, March, October, November and December shall be seven and three hundred seventy-five one-thousandths percent of the pari-mutuel pools and which, out of pari-mutuel pools for each day during all other months, shall be six and eight hundred seventy-five one-thousandths percent of the pari-mutuel pools, which shall take effect beginning fiscal year one thousand nine hundred ninety; (iv) (iii) shall pay one tenth of one percent of the pari-mutuel pools into the general fund of the county commission of the county in which the racetrack is located, except if within a municipality, then to the Municipal General Fund. The remainder of the commission shall be retained by the licensee; (iii) and (iv) Any licensee which has participated in the West Virginia Thoroughbred Development Fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, nineteen hundred ninety-two shall after allowance for the exclusion given by subsection (b), section ten of this article, make a deposit into a special fund to be established by the racing commission and to be used for the payment of breeders, awards and capital improvements breeders awards, restrictive races and stakes purses as authorized by section thirteen-b of this article, which deposits out of pari-mutuel pools shall, from the effective date of this section, and for fiscal year one thousand nine hundred eighty-five, be four-tenths percent; for fiscal year one thousand nine hundred eighty-six, be seven-tenths percent; for fiscal year one thousand nine hundred eighty-seven, be one percent; for fiscal year one thousand nine hundred eighty-eight, be one and one-half percent; and for fiscal year one thousand nine hundred eighty-nine, and each year thereafter, be two percent of the pools.
          Each licensee that permits or conducts pari-mutuel wagering at the licensee's thoroughbred horse racetrack shall annually pay five hundred thousand dollars from the special fund required by this section to be established by the licensee for the payment of regular purses offered for thoroughbred racing by the licensee into a special fund established by the Racing Commission for transfer to a pension plan established by the Racing Commission for all back stretch personnel, including, but not limited to, exercise riders, trainers, grooms and stable forepersons licensed by the Racing Commission to participate in horse racing in this state and their dependents.
          Each thoroughbred racetrack licensee is authorized to enter into an agreement with its local Horsemen's Benevolent and Protective Association under which an agreed upon percentage of up to two percent of purses actually paid during the preceding month may be paid to the local Horsemen's Benevolent and Protective Association from the special fund required by this section for their respective medical trusts for backstretch personnel and administrative fees.
          The commission deducted by any licensee from the pari-mutuel pools on thoroughbred horse racing involving what is known as multiple betting in which the winning pari-mutuel ticket or tickets are determined by a combination of two winning horses shall not exceed nineteen percent and by a combination of three or more winning horses shall not exceed twenty-five percent of the total of such pari-mutuel pools for the day. Out of the commission, as is mentioned in this paragraph, the licensee: (i) Shall pay the pari-mutuel pools tax provided for in subsection (b), section ten of this article; (ii) shall make a deposit into a special fund to be established by the licensee and to be used for the payment of regular purses offered for thoroughbred racing by the licensee, which deposits out of pari-mutuel pools for each day during the months of January, February, March, October, November and December, for pools involving a combination of two winning horses shall be eight and twenty-five one-hundredths percent and out of pari-mutuel pools for each day during all other months shall be seven and seventy-five one-hundredths percent of the pari-mutuel pools; and involving a combination of three or more winning horses for the months of January, February, March, October, November and December the deposits out of the fund shall be eleven and twenty-five one-hundredths percent of the pari-mutuel pools; and which, out of pari-mutuel pools for each day during all other months, shall be ten and seventy-five one-hundredths percent of the pari-mutuel pools; and (iv) (iii) shall pay one tenth of one percent of the pari-mutuel pools into the general fund of the county commission of the county in which the racetrack is located, except if within a municipality, then to the Municipal General Fund. The remainder of the commission shall be retained by the licensee; (iii) and (iv) any licensee which has participated in the West Virginia Thoroughbred Development Fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, nineteen hundred ninety-two shall after allowance for the exclusion given by subsection (b), section ten of this article, make a deposit into a special fund to be established by the racing commission and to be used for the payment of breeders' awards and capital improvements as authorized by section thirteen-b of this article, which deposits out of breeder awards, for restrictive races and stakes purses which deposits out of pari-mutuel pools shall, from the effective date of this section, and for fiscal year one thousand nine hundred eighty-five, be four-tenths percent; for fiscal year one thousand nine hundred eighty-six, be seven-tenths percent; for fiscal year one thousand nine hundred eighty-seven, be one percent; for fiscal year one thousand nine hundred eighty-eight, be one and one-half percent; and for fiscal year one thousand nine hundred eighty-nine, and each year thereafter, be two percent of the pools.
          The commission deducted by the licensee under this subdivision may be reduced only by mutual agreement between the licensee and a majority of the trainers and horse owners licensed by subsection (a), section two of this article or their designated representative. The reduction in licensee commissions may be for a particular race, racing day or days or for a horse race meeting. Fifty percent of the reduction shall be retained by the licensee from the amounts required to be paid into the special fund established by the licensee under the provisions of this subdivision. The Racing Commission shall promulgate any reasonable rules that are necessary to implement the foregoing provisions.
          (2) The commission deducted by any licensee from the pari-mutuel pools on harness racing shall not exceed seventeen and one-half percent of the total of the pari-mutuel pools for the day. Out of the commission the licensee shall pay the pari-mutuel pools tax provided for in subsection (c), section ten of this article and shall pay one tenth of one percent into the general fund of the county commission of the county in which the racetrack is located, except if within a municipality, then to the Municipal General Fund. The remainder of the commission shall be retained by the licensee.
          (3) The commission deducted by any licensee from the pari-mutuel pools on dog racing, except from dog racing pari-mutuel pools involving what is known as multiple betting in which the winning pari-mutuel ticket or tickets are determined by a combination of two or more winning dogs, shall not exceed sixteen and thirty one-hundredths percent of the total of all pari-mutuel pools for the day. The commission deducted by any licensee from the pari-mutuel pools on dog racing involving what is known as multiple betting in which the winning pari-mutuel ticket or tickets are determined by a combination of two winning dogs shall not exceed nineteen percent, by a combination of three winning dogs shall not exceed twenty percent, and by a combination of four or more winning dogs shall not exceed twenty-one percent of the total of such pari-mutuel pools for the day. The foregoing commissions are in effect for the fiscal years one thousand nine hundred ninety and one thousand nine hundred ninety-one. Thereafter, the commission shall be at the percentages in effect prior to the effective date of this article unless the Legislature, after review, determines otherwise. Out of the commissions, the licensee shall pay the pari-mutuel pools tax provided for in subsection (d), section ten of this article and one tenth of one percent of such pari-mutuel pools into the general fund of the county commission of the county in which the racetrack is located. In addition, out of the commissions, if the racetrack is located within a municipality, then the licensee shall also pay three tenths of one percent of the pari-mutuel pools into the general fund of the municipality; or, if the racetrack is located outside of a municipality, then the licensee shall also pay three tenths of one percent of the pari-mutuel pools into the State Road Fund for use by the Division of Highways in accordance with the provisions of this subdivision. The remainder of the commission shall be retained by the licensee.
          For the purposes of this section, 'municipality' means and includes any Class I, Class II and Class III city and any Class IV town or village incorporated as a municipal corporation under the laws of this state prior to the first day of January, one thousand nine hundred eighty-seven.
          Each dog racing licensee, when required by the provisions of this subdivision to pay a percentage of its commissions to the State Road Fund for use by the Division of Highways, shall transmit the required funds, in such manner and at such times as the Racing Commission shall by procedural rule direct, to the State Treasurer for deposit in the State Treasury to the credit of the Division of Highways State Road Fund. All funds collected and received in the State Road Fund pursuant to the provisions of this subdivision shall be used by the Division of Highways in accordance with the provisions of article seventeen-a, chapter seventeen of this code for the acquisition of right-of-way for, the construction of, the reconstruction of and the improvement or repair of any interstate or other highway, secondary road, bridge and toll road in the state. If on the first day of July, one thousand nine hundred eighty-nine, any area encompassing a dog racetrack has incorporated as a Class I, Class II or Class III city or as a Class IV town or village, whereas such city, town or village was not incorporated as such on the first day of January, one thousand nine hundred eighty-seven, then on and after the first day of July, one thousand nine hundred eighty-nine, any balances in the State Road Fund existing as a result of payments made under the provisions of this subdivision may be used by the State Road Fund for any purpose for which other moneys in the fund may lawfully be used, and in lieu of further payments to the State Road Fund, the licensee of a racetrack which is located in the municipality shall thereafter pay three tenths of one percent of the pari-mutuel pools into the general fund of the municipality. If, no incorporation occurs before the first day of July, one thousand nine hundred eighty-nine, then payments to the State Road Fund shall thereafter continue as provided for under the provisions of this subdivision.
          A dog racing licensee, before deducting the commissions authorized by this subdivision, shall give written notification to the Racing Commission not less than thirty days prior to any change in the percentage rates for the commissions. The Racing Commission shall prescribe blank forms for filing the notification. The notification shall disclose the following: (A) The revised commissions to be deducted from the pari-mutuel pools each day on win, place and show betting and on different forms of multiple bettings; (B) the dates to be included in the revised betting; and (C) such other information as may be required by the Racing Commission.
          The licensee shall establish a special fund to be used only for capital improvements or long-term debt amortization or both: Provided, That any licensee, heretofore licensed for a period of eight years prior to the effective date of the amendment made to this section during the regular session of the Legislature held in the year one thousand nine hundred eighty-seven, shall establish the special fund to be used only for capital improvements or physical plant maintenance, or both, at the licensee's licensed facility or at the licensee's commonly owned racing facility located within this state. Deposits made into the funds shall be in an amount equal to twenty-five percent of the increased rate total over and above the applicable rate in effect as of the first day of January, one thousand nine hundred eighty-seven, of the pari-mutuel pools for the day. Any amount deposited into the funds must be expended or liability therefor incurred within a period of two years from the date of deposit. Any funds not expended shall be transferred immediately into the State General Fund after expiration of the two-year period.
          The licensee shall make a deposit into a special fund established by the licensee and used for payment of regular purses offered for dog racing, which deposits out of the licensee's commissions for each day shall be three and seventy-five one-hundredths percent of the pari-mutuel pools.
          The licensee shall further establish a special fund to be used exclusively for marketing and promotion programs; the funds shall be in an amount equal to five percent over and above the applicable rates in effect as of the first day of January, one thousand nine hundred eighty-seven of the total pari-mutuel pools for the day.
          The Racing Commission shall prepare and transmit annually to the Governor and the Legislature a report of the activities of the Racing Commission under this subdivision. The report shall include a statement of: The amount of commissions retained by licensees; the amount of taxes paid to the state; the amounts paid to municipalities, counties and the Division of Highways Dog Racing Fund; the amounts deposited by licensees into special funds for capital improvements or long-term debt amortization and a certified statement of the financial condition of any licensee depositing into the fund; the amounts paid by licensees into special funds and used for regular purses offered for dog racing; the amounts paid by licensees into special funds and used for marketing and promotion programs; and such other information as the racing commission may consider appropriate for review.
          (c) In addition to any commission, a licensee of horse race or dog race meetings shall also be entitled to retain the legitimate breakage, which shall be made and calculated to the dime, and from the breakage, the licensee of a horse race meeting (excluding dog race meetings), shall deposit daily fifty percent of the total of the breakage retained by the licensee into the special fund created pursuant to the provisions of subdivision (1), subsection (b) of this section for the payment of regular purses.
          (d) The director of audit, and any other auditors employed by the Racing Commission who are also certified public accountants or experienced public accountants, shall have free access to the space or enclosure where the pari-mutuel system of wagering is conducted or calculated at any horse or dog race meeting for the purpose of ascertaining whether or not the licensee is deducting and retaining only a commission as provided in this section and is otherwise complying with the provisions of this section. They shall also, for the same purposes only, have full and free access to all records and papers pertaining to the pari-mutuel system of wagering and shall report to the Racing Commission in writing, under oath, whether or not the licensee has deducted and retained any commission in excess of that permitted under the provisions of this section or has otherwise failed to comply with the provisions of this section.
          (e) No licensee shall permit or allow any individual under the age of eighteen years to wager at any horse or dog racetrack, knowing or having reason to believe that the individual is under the age of eighteen years.
          (f) Notwithstanding the foregoing provisions of subdivision (1), subsection (b) of this section, to the contrary, a thoroughbred licensee qualifying for and paying the alternate reduced tax on pari-mutuel pools provided in section ten of this article shall distribute the commission authorized to be deducted by subdivision (1), subsection (b) of this section as follows: (i) The licensee shall pay the alternate reduced tax provided in section ten of this article; (ii) the licensee shall pay one tenth of one percent of the pari-mutuel pools into the general fund of the county commission of the county in which the racetrack is located, except if within a municipality, then to the Municipal General Fund; (iii) the licensee shall pay one half of the remainder of the commission into the special fund established by the licensee and to be used for the payment of regular purses offered for thoroughbred racing by the licensee; and (iv) the licensee shall retain the amount remaining after making the payments required in this subsection.
          (g) Each kennel which provides or races dogs owned or leased by others shall furnish to the Commission a surety bond in an amount to be determined by the Commission to secure the payment to the owners or lessees of the dogs the portion of any purse owed to the owner or lessee.
§19-23-13b. West Virginia Thoroughbred Development Fund; distribution; restricted races; nonrestricted purse supplements; preference for West Virginia accredited thoroughbreds.

     (a) The Racing Commission shall deposit moneys required to be withheld by an association or licensee in subsection (b), section nine of this article in a banking institution of its choice in a special account to be known as 'West Virginia Racing Commission Special Account -- West Virginia Thoroughbred Development Fund:' Provided, That after the West Virginia Lottery Commission has divided moneys between the West Virginia Thoroughbred Development Fund and the West Virginia Greyhound Breeding Development Fund pursuant to the provisions of sections ten and ten-b, article twenty-two-a, chapter twenty-nine of this code, the Racing Commission shall, beginning the first day of October, two thousand five, deposit the remaining moneys required to be withheld from an association or licensee designated to the Thoroughbred Development Fund under the provisions of subsection (b), section nine of this article, subdivision (3), subsection (e), section twelve-b of this article, subsection (b), section twelve-c of this article, paragraph (B), subdivision (3), subsection (b), section thirteen-c of this article and sections ten and ten-b, article twenty-two-a, chapter twenty-nine of this code into accounts for each thoroughbred racetrack licensee with a banking institution of its choice with a separate account for each association or licensee. Each separate account shall be a special account to be known as 'West Virginia Racing Commission Special Account - West Virginia Thoroughbred Development Fund' and shall name the licensee for which the special account has been established: Provided, however, That the Racing Commission shall deposit all moneys paid into the Thoroughbred Development Fund by a thoroughbred racetrack licensee that did not participate in the Thoroughbred Development Fund for at least four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two from the eighth day of July, two thousand five until the effective date of the amendment to this section passed during the Fourth Extraordinary Session of the 77th Legislature shall be paid into the purse fund of that thoroughbred racetrack licensee: Provided, further, That the moneys paid into the Thoroughbred Development Fund by a thoroughbred racetrack licensee that did not participate in the Thoroughbred Development Fund for at least four consecutive calendar years prior to the thirty- first day of December, on thousand nine hundred ninety-two, shall be transferred into that licensee's purse fund until the first day of April, two thousand six. Notice of the amount, date and place of the deposit deposits shall be given by the Racing Commission, in writing, to the State Treasurer. The purpose of the fund funds is to promote better breeding and racing of thoroughbred horses in the state through awards and purses for accredited breeders/raisers, sire owners and thoroughbred race horse owners: A further objective of the fund is to aid in the rejuvenation and development of the present horse tracks now operating in West Virginia for capital improvements, operations or increased purses Provided, That five percent of the deposits required to be withheld by an association or licensee in subsection (b), section nine of this article shall be placed in a special revenue account hereby created in the State Treasury called the 'Administration and Promotion Account'.
     (b) The Racing Commission is authorized to expend the moneys deposited in the administration and promotion account at times and in amounts as the Commission determines to be necessary for purposes of administering and promoting the thoroughbred development program: Provided, That during any fiscal year in which the Commission anticipates spending any money from the account, the Commission shall submit to the executive department during the budget preparation period prior to the Legislature convening before that fiscal year for inclusion in the executive budget document and budget bill the recommended expenditures, as well as requests of appropriations for the purpose of administration and promotion of the program. The Commission shall make an annual report to the Legislature on the status of the administration and promotion account, including the previous year's expenditures and projected expenditures for the next year.
     (c) The fund or funds and the account or accounts established in subsection (a) of this section shall operate on an annual basis.
     (d) Funds in the Thoroughbred Development Fund or funds shall be expended for awards and purses except as otherwise provided in this section. Annually, the first three hundred thousand dollars of the each fund shall be available for distribution for stakes races at a racetrack which has participated in the West Virginia Thoroughbred Development Fund for a period of more than four consecutive calender years prior to the thirty-first day of December, nineteen hundred ninety-two. One of the stakes races shall be the West Virginia Futurity and the second shall be the Frank Gall Memorial Stakes. For the purpose of participating in the West Virginia Futurity only, all mares, starting with the breeding season beginning the first day of February through the thirty-first day of July, two thousand four, and each successive breeding season thereafter shall be bred back that year to an accredited West Virginia stallion only which is registered with the West Virginia Thoroughbred Breeders Association. The remaining races may be chosen by the committee set forth in subsection (g) (f) of this section.
     (e) Awards and purses shall be distributed as follows:
     (1) The breeders/raisers of accredited thoroughbred horses that earn a purse at any a participating West Virginia meet shall receive a bonus award calculated at the end of the year as a percentage of the fund dedicated to the breeders/raisers, which shall be sixty percent of the fund available for distribution in any one year. The total amount available for the breeders'/raisers' awards shall be distributed according to the ratio of purses earned by an accredited race horse to the total amount earned in the participating races by all accredited race horses for that year as a percentage of the fund dedicated to the breeders/raisers. However, no breeder/raiser may receive from the fund dedicated to breeders'/raisers' awards an amount in excess of the earnings of the accredited horse at West Virginia meets. In addition, should a horse's breeder and raiser qualify for the same award on the same horse, they will each be awarded one half of the proceeds. The bonus referred to in this subdivision (1) may only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
     (2) The owner of a West Virginia sire of an accredited thoroughbred horse that earns a purse in any race at a participating West Virginia meet shall receive a bonus award calculated at the end of the year as a percentage of the fund dedicated to sire owners, which shall be fifteen percent of the fund available for distribution in any one year. The total amount available for the sire owners' awards shall be distributed according to the ratio of purses earned by the progeny of accredited West Virginia stallions in the participating races for a particular stallion to the total purses earned by the progeny of all accredited West Virginia stallions in the participating races. However, no sire owner may receive from the fund dedicated to sire owners an amount in excess of thirty-five percent of the accredited earnings for each sire. The bonus referred to in this subdivision (2) shall only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
     (3) The owner of an accredited thoroughbred horse that earns a purse in any participating race at a West Virginia meet shall receive a restricted purse supplement award calculated at the end of the year, which shall be twenty-five percent of the fund available for distribution in any one year, based on the ratio of the earnings in the races of a particular race horse to the total amount earned by all accredited race horses in the participating races during that year as a percentage of the fund dedicated to purse supplements. However, the owners may not receive from the fund dedicated to purse supplements an amount in excess of thirty-five percent of the total accredited earnings for each accredited race horse. The bonus referred to in this subdivision shall only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
     (4) In no event may purses earned at a meet held at a track which did not make a contribution to the Thoroughbred Development Fund out of the daily pool on the day the meet was held qualify or count toward eligibility for an award under this subsection.
     (5) Any balance in the breeders/raisers, sire owners and purse supplement funds after yearly distributions shall first be used to fund the races established in subsection (g) (f) of this section. Any amount not so used shall revert back into the general account of the Thoroughbred Development Fund for each racing association or licensee for distribution in the next year.
     Distribution shall be made on the fifteenth day of each February for the preceding year's achievements.
     (f) The remainder, if any, of the thoroughbred development fund that is not available for distribution in the program provided for in subsection (e) of this section in any one year is reserved for regular purses, marketing expenses and for capital improvements in the amounts and under the conditions provided in this subsection (f).
     (1) Fifty percent of the remainder shall be reserved for payments into the regular purse fund established in subsection (b), section nine of this article.
     (2) Up to five hundred thousand dollars per year shall be available for:
     (A) Capital improvements at the eligible licensed horse racing tracks in the state; and
     (B) Marketing and advertising programs above and beyond two hundred fifty thousand dollars for the eligible licensed horse racing tracks in the state: Provided, That moneys shall be expended for capital improvements or marketing and advertising purposes as described in this subsection only in accordance with a plan filed with and receiving the prior approval of the racing commission, and on a basis of fifty percent participation by the licensee and fifty percent participation by moneys from the fund, in the total cost of approved projects: Provided, however, That funds approved for one track may not be used at another track unless the first track ceases to operate or is viewed by the commission as unworthy of additional investment due to financial or ethical reasons.
     (g) (f) (1) Each pari-mutuel thoroughbred horse track shall provide at least one restricted race per racing day: Provided, That sufficient horses and funds are available. For purposes of this subsection, there are sufficient horses if there are at least seven single betting interests received for the race. The restricted race required by this section must be included in the first nine races written in the condition book for that racing day.
     (2) The restricted races established in this subsection shall be administered by a three-member committee at each track consisting of:
     (A) The racing secretary;
     (B) A member appointed by the authorized representative of a majority of the owners and trainers at the thoroughbred track; and
     (C) A member appointed by a majority of the West Virginia Thoroughbred Breeders Association.
     (3) The purses for the restricted races established in this subsection shall be twenty percent larger than the purses for similar type races at each track or equal to or of greater value than a comparable race: Provided, That sufficient funds are available: Provided, however, That the twenty percent requirement is applicable only to a thoroughbred racetrack which has participated in the West Virginia Thoroughbred Development Fund for a period of more than four consecutive calender years prior to the thirty-first day of December, one thousand nine hundred ninety-two.
     (4) Restricted races shall be funded by each racing association from:
     (A) Moneys placed in the general purse fund up to a maximum of three hundred fifty thousand dollars per year: Provided, That a thoroughbred horse racetrack which has participated in the West Virginia Thoroughbred Development fund for a period of more than four consecutive years prior to the thirty-first day of December, one thousand nine hundred ninety-two may fund restricted races in an amount not to exceed one million five hundred thousand dollars from the general purse fund.
     (B) Moneys as provided in subdivision (5), subsection (e) of this section, which shall be placed in a special fund called the 'West Virginia Accredited Race Fund'.
     (5) The racing schedules, purse amounts and types of races are subject to the approval of the West Virginia Racing Commission.
     (6) If less than seventy-five percent of the restricted races required by this subsection fail to receive enough entries to race, the Racing Commission shall, on a quarterly basis, dedicate funds in each fund back to the general purse fund of the racing association or licensee: Provided, That no moneys may be dedicated back to a general purse fund if the dedication would leave less than two hundred fifty thousand dollars in the fund.
_____(h) (g) As used in this section, 'West Virginia bred-foal' means a horse that was born in the State of West Virginia.
     (i) (h) To qualify for the West Virginia Accredited Race Fund, the breeder must qualify under one of the following:
     (1) The breeder of the West Virginia bred-foal is a West Virginia resident;
     (2) The breeder of the West Virginia bred-foal is not a West Virginia resident, but keeps his or her breeding stock in West Virginia year round; or
     (3) The breeder of the West Virginia bred-foal is not a West Virginia resident and does not qualify under subdivision (2) of this subsection, but either the sire of the West Virginia bred-foal is a West Virginia stallion, or the mare is covered by a West Virginia stallion following the birth of that West Virginia bred-foal.
     (j) No association or licensee qualifying for the alternate tax provision of subsection (b), section ten of this article is eligible for participation in any of the provisions of this section: Provided, That the provisions of this subsection do not apply to a thoroughbred race track at which the licensee has participated in the West Virginia thoroughbred development fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two.
     (k) (i) From the first day of July, two thousand one, West Virginia accredited thoroughbred horses have preference for entry in all accredited races at a thoroughbred race track at which the licensee has participated participates in the West Virginia Thoroughbred Development Fund. for a period of more than four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two
     (j) Beginning the first day of July, two thousand six, any racing association licensed by the Racing Commission to conduct thoroughbred racing and permitting and conducting pari-mutuel wagering under the provisions of this article must have a West Virginia Thoroughbred Racing Breeders Program.
_____(k) The Commission shall during calendar year two thousand nine, conduct a study of the adequacy of funding provided for the Thoroughbred Development Fund at any thoroughbred racetrack which has not participated in the West Virginia Thoroughbred Development Fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, nineteen hundred ninety-two, and shall report its findings and recommendations to the Joint Committee on Government and Finance on or before the first day of December, two thousand nine.
§19-23-13c. Expenditure of racetrack video lottery distribution.
     (a) Funds received by the Racing Commission pursuant to subdivision (6), subsection (c), section ten, article twenty-two-a, chapter twenty-nine of this code, and subdivision (5), subsection (a), section ten-b, article twenty-two-a, chapter twenty-nine of this code, after the effective date of this section together with the balance in the bank account previously established by the Commission to receive those funds shall be deposited in a banking institution of its choice in a special account to be known as "West Virginia Racing Commission Racetrack Video Lottery Account." Notice of the amount, date and place of each deposit shall be given by the Racing Commission, in writing, to the State Treasurer.
     (b) Funds in this account shall be allocated and expended as follows:
     (1) For each fiscal year, the first eight hundred thousand dollars deposited in the separate account plus the amount then remaining of the June thirtieth, one thousand nine hundred ninety-seven, balance in the separate account previously established for the West Virginia breeders classic under section thirteen of this article, shall be used by the Commission for promotional activities, advertising, administrative costs and purses for the West Virginia Thoroughbred Breeders Classic, which shall give equal consideration to all horses qualifying under the West Virginia breeders program for each stake race, based solely on the horses' sex, age and earnings.
     (2) For each fiscal year, the next two hundred thousand dollars deposited into the separate account shall be used by the Commission for promotional activities and purses for open stake races for a race event to be known as the West Virginia Derby to be held at a thoroughbred racetrack which does not participate in the West Virginia thoroughbred development fund Breeders Classic.
     (3) For each fiscal year, once the amounts provided in subdivisions (1) and (2) of this subsection (b) have been deposited into separate bank accounts for use in connection with the West Virginia Thoroughbred Breeders Classics and the West Virginia Derby, the Commission shall return to each racetrack all additional amounts deposited which originate during that fiscal year from each respective racetrack pursuant to subdivision (6), subsection (c), section ten, article twenty-two-a, chapter twenty-nine of this code, which returned excess funds shall be used as follows:
     (A) For each dog racetrack, one half of the returned excess funds shall be used for capital improvements at the racetrack and one half of the returned excess funds shall be deposited into the West Virginia Racing Commission Special Account - West Virginia Greyhound Breeding Development Fund.
     (B) At those thoroughbred racetracks that have participated in the West Virginia Thoroughbred Development Fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two, one half of the returned excess funds shall be used for capital improvements at the licensee's racetrack and one half of the returned excess funds shall be equally divided between the West Virginia Thoroughbred Breeders Classic and the West Virginia Thoroughbred Development Fund.
     (C) At those thoroughbred horse racetracks which do not participate in the West Virginia thoroughbred development fund Breeders Classic, one half of the returned excess funds shall be used for capital improvements at the licensee's racetrack and one half of the returned excess funds shall be used for purses for the open stakes race event known as the West Virginia Derby.
     (c) All expenditures that are funded under this section must be approved in writing by the West Virginia Racing Commission before the funds are expended for any of the purposes authorized by this section.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10b. Distribution of excess net terminal income.
     (a) For all years beginning on or after the first day of July, two thousand one, any amount of net terminal income generated annually by a licensed racetrack in excess of the amount of net terminal income generated by that licensed racetrack during the fiscal year ending on the thirtieth day of June, two thousand one, shall be divided as follows:
     (1) The commission shall receive forty-one percent of net terminal income, which the commission shall deposit in the state excess lottery revenue fund created in section eighteen-a, article twenty-two of this chapter;
     (2) Until the first day of July, two thousand five, eight 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; on and after the first day of July, two thousand five, the rate shall be four percent of net terminal income;
     (3) The county where the video lottery terminals are located shall receive two percent of the net terminal income Provided, That:
     (A) Any amount by which the total amount under this section and subdivision (3), subsection (c), section ten of this article is 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) Any amount by which the total amount under this section and subdivision (3), subsection (c), section ten of this article is 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-two 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: Provided, That for each fiscal year beginning after the thirtieth day of June, two thousand four, this three percent of net terminal income shall be distributed pursuant to the provisions of paragraph (B), subdivision (8), subsection (c), section ten of this article;
     (9) (A) On and after the first day of July, two thousand five, four percent of net terminal income shall be deposited into the Workers' Compensation Debt Reduction Fund created in section five, article two-d, chapter twenty-three of this code: Provided, That in any fiscal year when the amount of money generated by this subdivision together with the total allocation transferred by the operation of subdivision (9), subsection (c), section ten of this article totals eleven million dollars, all subsequent distributions under this subdivision (9) during that fiscal year 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;
     (B) The deposit of the four percent of net terminal income into the Worker's Compensation Debt Reduction Fund pursuant to this subdivision shall expire and not be imposed with respect to these funds, which shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to the other amounts provided in article twenty-three, chapter nineteen of this code, on and after the first day of the month following the month in which the Governor certifies to the Legislature that: (i) The revenue bonds issued pursuant to article two-d, chapter twenty-three of this code, have been retired or payment of the debt service is provided for; and (ii) that an independent certified actuary has determined that the unfunded liability of the old fund, as defined in chapter twenty-three of this code, has been paid or provided in its entirety; and
     (10) (A) One percent of the 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; and
     (B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after the thirtieth day of June, two thousand four, this one percent of net terminal income shall be distributed pursuant to the provisions of subparagraph (ii), paragraph (B), subdivision (9), subsection (c), section ten of this article.
     (b) The commission may establish orderly and effective procedures for the collection and distribution of funds under this section in accordance with the provisions of this section and section ten of this article."
     The bill (Com. Sub. for H. B. 411) was then ordered to engrossment and third reading.
     The following bills on second reading, coming up in regular order, were each read a second time and ordered to engrossment and third reading:
     Com. Sub. for H. B. 412, Relating generally to Workers' Compensation,
     Com. Sub. for H. B. 413, Providing an increase in the annual base salary of all sworn state police personnel,
     Com. Sub. for H. B. 414, Supplementing and amending chapter sixteen, Acts of the Legislature, regular session, two thousand five, as amended known as the budget bill, providing for salary increases for public employees,
     Com. Sub. for H. B. 415, Supplementing, amending, reducing and increasing items of the existing appropriation from the Department of Agriculture, agriculture fees fund,
     H. B. 416, Making a supplementary appropriation to the Department of Agriculture -West Virginia Agricultural Land Protection Authority,
     And,
     H. B. 419, Supplementing, amending reducing and increasing items of the existing appropriations from the state fund, to the Department of Health and Human Services - Division of Human Services, and higher education, higher education policy commission.
     S. B. 4010, Relating to proposed merger of Teachers' Defined Contribution Retirement System with State Teachers Retirement System; on second reading, coming up in regular order, was read a second time, advanced to third reading, and the rule was suspended to permit the offering and consideration of amendments thereto on third reading.
     The following bills on second reading, coming up in regular order, were each read a second time and ordered to third reading:
     S. B. 4015, Supplementing, amending, reducing and increasing items of existing appropriation from Department of Agriculture, Fees Fund,
     S. B. 4016, Making supplementary appropriation to Department of Agriculture, Agricultural Land Protection Authority,
     And,
     S. B. 4017, Supplementing, amending, reducing and increasing items of existing appropriations from State Fund, General Revenue, to Division of Human Services and Higher Education Policy Commission.
Leaves of Absence

     At the request of Delegate Staton, and by unanimous consent, leave of absence for the day was granted Delegate Morgan.
Miscellaneous Business

     Delegate Frich announced that she was absent when the votes were taken on Roll Call Nos. 806, 807, 809, 810 and 811, and had she been present, she would have voted "Yea" thereon.
     Delegate Frich asked and obtained unanimous consent that the poem authored and read by Delegate Hrutkay entitled "We Need People Like That" be printed in the Appendix to the Journal.
      Delegates Mahan and Stevens asked and obtained unanimous consent that the explanation by the Speaker and the ensuing dialog of members concerning the research provided by the House Clerk and Parliamentarian, relative to the prerogatives of the House as to its procedures in dealing with items on the Proclamation, be printed in the Appendix to the Journal.
     At 11:31 p.m., the House of Delegates adjourned until 9:30 a.m., Monday, September 12, 2005.