WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

FOURTH EXTRAORDINARY SESSION, 2005

FIFTH DAY

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Charleston, W. Va., Sunday, September 11, 2005

     The Senate met at 7 p.m.
(Senator Tomblin, Mr. President, in the Chair.)

     Prayer was offered by the Honorable Steve Harrison, a senator from the eighth district.
     Pending the reading of the Journal of Saturday, September 10, 2005,
     On motion of Senator Boley, 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, Monday, September 12, 2005, at 11 a.m.
      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. 4008, Relating to salaries for teachers and school service personnel.
     With an amendment from the Committee on Education pending;
     Now on second reading, having been read a first time and referred to the Committee on Finance on September 10, 2005;
     And reports the same back with the recommendation that it do pass as amended by the Committee on Education to which the bill was first referred.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     At the request of Senator Helmick, unanimous consent being granted, the bill (S. B. No. 4008) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
     The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
     On page nine, section two, line fourteen, by striking out the word "six" and inserting in lieu thereof the word "five".
     The bill (S. B. No. 4008), 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. 4008 was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4008) 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. 4008) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
      Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
     Your Committee on Government Organization has had under consideration
     Senate Bill No. 4012, Relating generally to salaries of state officials .
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 4012 (originating in the Committee on Government Organization)--A Bill to amend and reenact §15-2-5 of the Code of West Virginia, 1931, as amended; to amend and reenact §19-23-4 of said code; and to amend and reenact §50-1-8 and §50-1-9 of said code, all relating to increasing the salaries of State Police personnel; codifying the salaries for members of the Racing Commission; and increasing the salaries of magistrate clerks and magistrate assistants.
     With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
                              Respectfully submitted,
                               Edwin J. Bowman,
                               Chair.
     At the request of Senator Bowman, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 4012) contained in the preceding report from the Committee on Government Organization 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.
     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. 4013, Amending certain provisions of the code involving horse and dog racing; distribution of certain proceeds.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 4013 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §19-23-9, §19-23-13b and §19-23-13c of the Code of West Virginia, 1931, as amended; and to amend and reenact §29-22A-10b of said code, all relating to amending certain provisions of the code involving horse and dog racing and distribution of certain proceeds; providing special funds, to be established by the Racing Commission, to be used for the payment of breeders' awards, restrictive races and stakes purses; deleting obsolete provisions; deleting the stated objective for the Fund to aid in the rejuvenation and development of horse tracks in the state for capital improvements and other purposes; providing that the Commission establish funds and accounts for each association and licensee rather than holding funds in deposit in one fund; deleting current provisions concerning the distribution of balances remaining in breeders and raisers, sire owners and purse supplement funds; clarifying the meaning of the phrase "sufficient horses" for purposes of pari- mutuel thoroughbred horse tracks' provision of restricted races; providing that the requirement increasing certain purses in restricted races is only applicable to thoroughbred racetracks that have participated in the West Virginia Thoroughbred Development Fund for more than four consecutive years; providing the Racing Commission may transfer funds back to the general purse fund if less than seventy-five percent of the restricted races fail to receive enough entries; deleting the provision that prohibits associations and licensees who qualify for alternate tax provisions contained in subsection (b), section ten, article twenty-three, chapter nineteen of said code from eligibility for treatment under the provisions of section thirteen-b of said article; providing that on the first day of January, two thousand six, licensed racing associations must have a West Virginia Thoroughbred Racing Breeders' Program; clarifying disbursement of funds for the benefit of the West Virginia Breeders' Classic; requiring Racing Commission to conduct a study of the adequacy of funding of certain Thoroughbred Development Funds and requiring a report thereon to the Legislature; allowing for different uses of Thoroughbred Development Funds by thoroughbred racing tracks based upon differences in circumstance; deleting provisions of the Racetrack Video Lottery Act exempting certain licensees from paying into the thoroughbred and greyhound breeders' funds; increasing maximum amount from the general purse fund for purposes of restricted races for the thoroughbred racetrack which participated in the Thoroughbred Development Fund for at least four consecutive years prior to the thirty-first day of December, one thousand nine hundred ninety-two; and making technical corrections and providing reversion of racetrack video lottery excess net terminal income diverted from the racetrack purse funds to Workers' Compensation Debt Reduction Fund pursuant to Enrolled Senate Bill No. 1004, which took effect the twenty-ninth day of January, two thousand five, to revert to racetrack purse after a total amount of eleven million dollars of net terminal income and excess net terminal income has been diverted to each fiscal year from the purse funds to the workers' compensation debt.
     With the recommendation that the committee substitute 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 (Com. Sub. for S. B. No. 4013) 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.
     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. 4018, Providing salary increase for elected county officials.
     Now on second reading, having been read a first time and referred to the Committee on Finance on September 10, 2005;
     And reports the same back with the recommendation that it do pass.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     At the request of Senator Helmick, unanimous consent being granted, the bill (S. B. No. 4018) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, 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, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: Weeks--1.
     Absent: None.
     Engrossed Senate Bill No. 4018 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 present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4018) 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. 4018) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     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. 4019, Relating to higher education employee salary increases.
     And has amended same.
     Now on second reading, having been read a first time and referred to the Committee on Finance on September 10, 2005;
     And reports the same back with the recommendation that it do pass, as amended.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     At the request of Senator Helmick, unanimous consent being granted, the bill (S. B. No. 4019) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
     The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
     On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-1. Definitions.
  For the purposes of this article:
  (a) "Eligible employee" means either of the following:
  (1) Any regular full-time employee of the state or any spending unit of the state who is eligible for membership in any state retirement system of the State of West Virginia or other retirement plan authorized by the state: Provided, That the mandatory salary increase required by this article shall does not apply to any faculty employee at state institutions of higher education, or any employee of the state whose compensation is fixed by statute or by statutory schedule other than employees described in this section: Provided, however, That effective the first day of July, two thousand six, the mandatory salary increase required by this article does apply to certain faculty employees at state institutions of higher education as set forth in subdivision (3) of this subsection. Clerks, deputy clerks and magistrate assistants of magistrate courts are eligible for the incremental salary increases provided in this article with the increases to be allowable in addition to the maximum salaries and compensation for the employee offices under the magistrate court system statutes of article one, chapter fifty of this code. This article may not be construed to does not mandate an increase in the salary of any elected or appointed officer of the state; or
  (2) Any classified employee as defined in section two, article nine, chapter eighteen-b of this code who is an employee of a state institution of higher education, or of the Higher Education Policy Commission or the Council for Community and Technical College Education; or
__(3) Effective on the first day of July, two thousand six, and thereafter, any full-time member of the faculty as defined in section one, article eight, chapter eighteen-b of this code who is an employee of a state institution of higher education, the Higher Education Policy Commission, or the Council for Community and Technical College Education;
  (b) "Years of service" means full years of totaled service as an employee of the State of West Virginia; and
  (c) "Spending unit" means any state office, department, agency, board, commission, institution, bureau or other designated body authorized to hire employees.
CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 8. HIGHER EDUCATION FULL-TIME FACULTY SALARIES.
§18B-8-7. Allocation of certain funds for faculty salary increases.

  (a) The faculty share of the funds appropriated during the fourth extraordinary session, two thousand five, to the Community and Technical College Education Control Account - Fund 0596 and to the Higher Education Policy Commission System Control Account - Fund 0586 shall be used for the purpose of providing salary increases to faculty effective the first day of November, two thousand five. Notwithstanding any institutional policies to the contrary, the faculty share of the funds shall be allocated for the salary increases in such a manner that all full-time faculty receive an equal amount of a salary increase and part-time faculty receive a salary increase that is a proportional fraction of the salary increase of full-time faculty. The faculty share of these funds shall be used to provide salary increases to faculty in accordance with this section, and not in accordance with any institutional policy on faculty salary increases. The salary increase received by each faculty member pursuant to this section shall become a part of his or her base salary.
  (b) The faculty share of the funds shall be determined by dividing the number of full-time equivalent faculty by the sum of all full-time equivalent employees, and then multiplying the quotient by the total amount allocated to the institution or other entity, as applicable.
ARTICLE 9. CLASSIFIED EMPLOYEE SALARY SCHEDULE AND CLASSIFICATION SYSTEM.

§18B-9-13. Allocation of certain funds for classified employee salary increases.

  (a) The classified employees share of the funds appropriated during the fourth extraordinary session, two thousand five, to the Community and Technical College Education Control Account - Fund 0596, to the Higher Education Policy Commission Administration Control Account - Fund 0589 and to the Higher Education Policy Commission System Control Account - Fund 0586 shall be used for the purpose of providing salary increases to classified employees effective the first day of November, two thousand five. Notwithstanding any institutional policies to the contrary, the classified employees' share of the funds shall be allocated to full-time equivalent classified employees for salary increases in such a manner that each classified employee receives an equal percentage of the amount the classified employee's salary is below the salary prescribed for that employee in the Higher Education Classified Employee Annual Salary Schedule set forth in section three of this article. Classified employees who are at or above the salary prescribed for them in the salary schedule shall not receive an increase and shall not be included in the calculation of each employee's salary increase. The classified employees' share of the funds shall be used to provide salary increases to classified employees in accordance with this section, and not in accordance with any institutional policy on classified employee salary increases. The salary increase received by each classified employee pursuant to this section shall become a part of his or her base salary.
  (b) If any funds remain from the classified employees' share of the funds after distributing the funds in accordance with the method prescribed in subsection (a) of this section, the method for allocating the remaining funds for classified employee salary increases shall be determined by the institution or other entity, as applicable.
  (c) The classified employees' share of the funds shall be determined by dividing the number of full-time equivalent classified employees by the sum of all full-time equivalent employees, and then multiplying the quotient by the total amount allocated to the institution or other entity, as applicable.
  The bill (S. B. No. 4019), 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. 4019 was then read a third time and put upon its passage.
  On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
  The nays were: None.
  Absent: None.
  So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4019) passed.
  The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
  On page one, by striking out the title and substituting therefor a new title, to read as follows:
  Eng. Senate Bill No. 4019--A Bill to amend and reenact §5-5-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18B-8-7; and to amend said code by adding thereto a new section, designated §18B-9-13, all relating to higher education salary increases; providing the salary increment to faculty at state institutions of higher education; and providing methods for allocating certain funds for higher education employee salary increases.
  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. 4019) 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 seventh order of business.
  Senate Concurrent Resolution No. 401, Requesting Division of Highways name portion of Route 16 in Fayette County "Hank Williams, Sr., Memorial Road".
  On unfinished business, coming up in regular order, was reported by the Clerk.
  The question being on the adoption of the resolution, the same was put and prevailed.
  Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
  The Senate proceeded to the ninth order of business.
  Eng. House Bill No. 405, Changing West Virginia's Unemployment Compensation law to conform it to federally mandated legislation.
  On second reading, coming up in regular order, was read a second time and ordered to 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.
  Having been engrossed, the bill (Eng. H. B. No. 405) was then read a third time and put upon its passage.
  On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
  The nays were: None.
  Absent: None.
  So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 405) passed with its title.
  Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
  Eng. House Bill No. 406, Providing that the fourth Thursday and Friday of November are "Thanksgiving Holidays", and combining Lincoln's Birthday and Washington's Birthday into a single holiday known as Presidents' Day to match the federal holiday.
  On second reading, coming up in regular order, was read a second time.
  On motions of Senators Bailey, Jenkins, Minard, McCabe, Foster, Kessler, Edgell, Bowman, Chafin, Helmick, Dempsey, Fanning, Hunter, Love, Oliverio, Plymale, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President), the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
   O n page two, section one, lines fourteen and fifteen, by striking out all of subdivision (10) and inserting in lieu thereof the following:
  "(10) The fourth Thursday of November is 'Thanksgiving Day';
  (11) The fourth Friday of November is 'Family Values Day';";
  And,
  By renumbering the remaining subdivisions.
  On motion of Senator Bowman, the following amendment to the bill (Eng. H. B. No. 406) was next reported by the Clerk and adopted:
  On page three, section one, line thirty-four, by striking out the words "subdivision (13)" and inserting in lieu thereof the words "subdivisions (13), (14) and (15)".
  On motion of Senator Barnes, the following amendment to the bill (Eng. H. B. No. 406) was next reported by the Clerk:
  On page two, section one, line nine, after the word "Virginia" by inserting a hyphen and the word "Lincoln".
  The question being on the adoption of the amendment offered by Senator Barnes to the bill, the same was put.
  The result of the voice vote being inconclusive, Senator Deem demanded a division of the vote.
  A standing vote being taken, there were thirteen "yeas" and seventeen "nays".
  Whereupon, the President declared the amendment offered by Senator Barnes to the bill rejected.
  The bill (Eng. H. B. No. 406), as amended, was then ordered to third reading.
  Pending announcement of meetings of standing committees of the Senate,
  On motion of Senator Chafin, the Senate adjourned until tomorrow, Monday, September 12, 2005, at 11 a.m.
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