WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

FOURTH EXTRAORDINARY SESSION, 2005

THIRD DAY

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Charleston, W. Va., Friday, September 9, 2005

     The Senate met at 5 p.m.
(Senator Tomblin, Mr. President, in the Chair.)

     Prayer was offered by the Honorable Brooks F. McCabe, Jr., a senator from the seventeenth district.
     Pending the reading of the Journal of Thursday, September 8, 2005,
     On motion of Senator Dempsey, the Journal was approved and the further reading thereof dispensed with.
      On motion of Senator Love, the special order of business set for this position on the calendar (consideration of executive and legislative nominations) was postponed and made a special order of business for tomorrow, Saturday, September 10, 2005, at 9 a.m.
      The Senate proceeded to the second order of business and the introduction of guests.
      The Senate then proceeded to the third order of business.
      A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Senate Bill No. 4002, Allowing additional elections at primary elections; removing certain language.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the bill was reported by the Clerk:
     On page four, section sixteen, line eight, after the word "apply" by changing the colon to a period and striking out the following: Provided, That nothing contained in this section shall conflict with the provisions of section eleven, article X of the Constitution of West Virginia.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Senate Bill No. 4002, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4002) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
      So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4002) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 403--A Bill to amend and reenact §15-2A-12 of the Code of West Virginia, 1931, as amended, relating to benefits to dependents of a state trooper who dies in performance of duties or dies after retirement due to service-related disability.
     At the request of Senator Chafin, and by unanimous consent, reference of the bill 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 Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 406--A Bill to amend and reenact §2-2-1 of the Code of West Virginia, 1931, as amended, relating to state holidays; providing that the fourth Thursday and Friday of November shall be legal holidays known as the Thanksgiving Holidays; and combining Lincoln's and Washington's birthdays into a single Presidents' Day holiday.
     At the request of Senator Chafin, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration.
Executive Communications

     Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

September 9, 2005

Senate Executive Message No. 2
TO:  The Honorable Members of the
     West Virginia Senate
Ladies and Gentlemen:
     I am respectfully withdrawing the following appointment from Senate Executive Message No. 1 dated September 7, 2005:
     39.  For Member, Governor's Advisory Council for Educational Technology, Dr. Gail E. Looney, Charleston, Kanawha County, for the term ending April 10, 2008.
     Thank you for correcting your records.
                              Sincerely,
                               Joe Manchin III,
                               Governor.
      Which communication was received and referred to the Committee on Confirmations.
      The Senate proceeded to the fourth order of business.
     Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration
     Senate Bill No. 4001, Relating to benefits to dependents of certain state troopers.
     And has amended same.
     Now on second reading, having been read a first time and referred to the Committee on Finance on September 7, 2005;
     And,
     Senate Bill No. 4010, Relating to proposed merger of Teachers' Defined Contribution Retirement System with State Teachers Retirement System.
     And has amended same.
     Now on second reading, having been read a first time and referred to the Committee on Finance on September 8, 2005;
     And reports the same back with the recommendation that they each do pass, as amended.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     At the request of Senator Helmick, unanimous consent being granted, one of the bills (S. B. No. 4010) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
     The following amendments to the bill, from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:
     On page ten, section six, line twenty, after the word "transferred." by inserting the following: Except as otherwise provided in this section, each member shall pay the contribution required no later than the thirtieth day of June, two thousand seven.;
     And,
     On page twelve, section six, line fourteen, after the word "seven" by changing the period to a colon and adding the following proviso: Provided, That a member who has left employment but has not withdrawn his or her funds, upon returning to employment, shall pay the one and one-half percent contribution required in this section within one year of being rehired, and, for one year following the date of rehire, is eligible to obtain a loan, as established in this section, for the purpose of paying the required contribution.
     The bill (S. B. No. 4010), as amended, was then ordered to engrossment and third reading.
     On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
     On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     Engrossed Senate Bill No. 4010 was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--30.
     The nays were: Harrison, McKenzie, Oliverio and Yoder--4.
     Absent: None.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4010) passed.
     On motions of Senators Foster and Helmick, the following amendment to the title of the bill was reported by the Clerk and adopted:
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 4010--A Bill to amend and reenact §18-7C- 2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C-8, §18- 7C-9, §18-7C-10, §18-7C-11, §18-7C-12 and §18-7C-13 of the Code of West Virginia, 1931, as amended, all relating to the proposed merger of the Teachers' Defined Contribution Retirement System with the State Teachers Retirement System; amending certain definitions; clarifying credit receipt and asset calculations for transfer; clarifying when certain contributions shall be paid; clarifying loan eligibility; establishing date on which money must be in a member's account to be eligible to vote in the merger election; requiring payment of contribution for full service credit; adding the Board's ability to do all things necessary to maintain the current retirement system during any transition period; clarifying that the member may select either periodic payments or lump sum distribution of the member's total vested account at the date of merger if certain conditions are met; and technical corrections.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--30.
     The nays were: Harrison, McKenzie, Oliverio and Yoder--4.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4010) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
      Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
     Your Committee on the Judiciary has had under consideration
     Senate Bill No. 4011, Allowing additional flexibility for issuance and rates for workers' compensation bonds generally.
     And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
      At the request of Senator Kessler, unanimous consent being granted, the bill (S. B. No. 4011) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance.
     The Senate proceeded to the sixth order of business.
     On motions for leave, severally made, the following bill was introduced, read by its title, and referred to the appropriate committees:
     By Senators Kessler, Bowman, Edgell, Minard, McKenzie, Minear, Sharpe, Plymale, Fanning, Dempsey, Prezioso, Jenkins, Foster, Hunter, Unger, White, McCabe, Facemyer, Lanham, Love, Deem, Caruth, Yoder, Sprouse, Weeks, Boley, Guills, Helmick, Bailey, Chafin and Tomblin (Mr. President):
     Senate Bill No. 4018-- A Bill to amend and reenact §7-7-1 and §7-7-4 of the Code of West Virginia, 1931, as amended, all relating to providing a salary increase for elected county officials; and finding that additional duties have been imposed on county officials which justify the increased compensation.
     Referred to the Committee on Government Organization; and then to the Committee on Finance.
Petitions

     Senators Edgell and Kessler presented a petition from Joyce Suter and numerous West Virginia residents, requesting the Legislature repeal or amend the Limited Video Lottery Act to limit or restrict video lottery establishments.
     Referred to the Committee on the Judiciary.
      The Senate proceeded to the ninth order of business.
     Senate Bill No. 4006, Relating to accountability of persons receiving state funds or grants.
     On second reading, coming up in regular order, was reported by the Clerk.
     At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
      Senate Bill No. 4014, Making supplementary appropriation to Lottery Commission, Excess Lottery Revenue Fund Surplus.
      On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
     On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     Engrossed Senate Bill No. 4014 was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4014) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4014) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
      Senate Bill No. 4015, Supplementing, amending, reducing and increasing items of existing appropriation from Department of Agriculture, Fees Fund.
      On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
     On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     Engrossed Senate Bill No. 4015 was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4015) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4015) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
      Senate Bill No. 4016, Making supplementary appropriation to Department of Agriculture, Agricultural Land Protection Authority.
      On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
     On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     Engrossed Senate Bill No. 4016 was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4016) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4016) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
      Senate Bill No. 4017, Supplementing, amending, reducing and increasing existing appropriations from State Fund, General Revenue, to Division of Human Services and Higher Education Policy Commission.
      On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
     On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     Engrossed Senate Bill No. 4017 was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: Barnes--1.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4017) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: Barnes--1.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4017) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     The Senate proceeded to the twelfth order of business.
     Remarks were made by Senators Deem, Barnes, Prezioso and Caruth.
     Thereafter, at the request of Senator Love, and by unanimous consent, the remarks by Senator Barnes were ordered printed in the Appendix to the Journal.
     At the request of Senator Sprouse, unanimous consent being granted, the remarks by Senator Deem were ordered printed in the Appendix to the Journal.
     Pending announcement of meetings of standing committees of the Senate,
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Saturday, September 10, 2005, at 9 a.m.
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