WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

FOURTH EXTRAORDINARY SESSION, 2005

SEVENTH DAY

____________

Charleston, W. Va., Tuesday, September 13, 2005

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

     Prayer was offered by the Honorable C. Randy White, a senator from the eleventh district.
     Pending the reading of the Journal of Monday, September 12, 2005,
     On motion of Senator Minard, the Journal was approved and the further reading thereof dispensed with.
     Senator Tomblin (Mr. President) presented a communication from the Board of Examiners for Licensed Practical Nurses, submitting its annual report, in accordance with chapter thirty, article twenty-four, section seven of the code of West Virginia.
     Which report was received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Board of Examiners in Counseling, submitting its annual report as required by chapter thirty, article thirty-one, section five of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Senate 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 with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 4006, Relating to accountability of persons receiving state funds or grants.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page one, by striking out everything after the enacting clause and inserting in lieu thereof the provisions of Engrossed Committee Substitute for House Bill No. 408;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 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 for certain state funds or grants; giving Secretary of the Department of Administration rule-making authority; providing for the barring of persons from receiving state grants or funds; providing for the submission of information on sworn statements or reports to the Legislative Auditor; authorizing the Legislative Auditor to perform audits in certain circumstances; requiring the Legislative Auditor to inform the State Treasurer if certain reports or sworn statements are not submitted within a certain period; and providing criminal penalties for filing a fraudulent sworn statement of expenditures, a fraudulent sworn statement or a fraudulent report.
     On motion of Senator McCabe, the following amendments to the House of Delegates amendments to the bill were reported by the Clerk and adopted:
     O n page four, section fourteen, line thirty-seven, by striking out the word "twenty-five" and inserting in lieu thereof the word "fifty";
     On page four, section fourteen, line thirty-eight, by striking out the word "person's" and inserting in lieu thereof the word "state's";
     On page four, section fourteen, line forty, after the word "audit" by inserting a comma and the words "by an independent certified public accountant,";
     On page four, section fourteen, line forty-nine, by striking out the word "twenty-five" and inserting in lieu thereof the word "fifty";
     On page five, section fourteen, line fifty, by striking out the word "done" and inserting in lieu thereof the words "conducted or substituted";
     On page six, section fourteen, line sixty-nine, after the word "statement" by inserting the words "of expenditures";
     And,
     On page eight, section fourteen, line one hundred fourteen, by striking out the word "performed" and inserting in lieu thereof the word "submitted".
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
     Engrossed Senate Bill No. 4006, as amended, 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. 4006) passed with its House of Delegates amended 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. 4006) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 4010, Relating to proposed merger of Teachers' Defined Contribution Retirement System with State Teachers Retirement System.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §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, be amended and reenacted, all to read as follows:
ARTICLE 7C. MERGER OF TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM WITH STATE TEACHERS RETIREMENT SYSTEM.

§18-7C-2. Legislative findings and purpose.
     (a) The Legislature declares that the State of West Virginia and its citizens have always believed in a strong public education system. The Constitution of this state mandates a thorough and efficient public education system. The Legislature notes that the quality of our state's education system is dependent, inter alia, upon the motivation and quality of its teachers and educational service personnel.
     (b) The Legislature finds and declares that the State of West Virginia is privileged to be the home of some of the best teachers and education service personnel in this nation, and that our teachers and education service personnel are dedicated and hard- working individuals. The Legislature further finds and declares that our teachers and education service personnel deserve a retirement program whereby they know in advance what their retirement benefit will be, a defined benefit retirement program where our teachers and service personnel will not have to bear the risk of investment performance to receive their full retirement benefit. The Legislature notes that uncertainty exists in the investment markets, especially in the post-September eleventh era, and that placing this risk and uncertainty upon the state in the form of a defined benefit plan will protect and ensure a meaningful retirement benefit for our teachers and educational service personnel.
     (c) The Legislature declares that it is in the best interests of the teachers and public education in this state, and conducive to the fiscal solvency of the State Teachers Retirement System, that the Teachers' Defined Contribution Retirement System be merged with the State Teachers Retirement System.
     (d) The Legislature also finds that a fiscally sound retirement program with an ascertainable benefit aids in the retention and recruitment of teachers and school service personnel and that the provisions of this article are designed to accomplish the goals set forth in this section.
     (e) The Legislature has studied this matter diligently and in making the determination to merge the two plans has availed itself of an actuarial study of the proposed merger by the actuary of the Consolidated Public Retirement Board as well as engaging and has engaged the service of two independent actuaries.
     (f) The Legislature further finds and declares that members of a defined contribution system who must bear the attendant market risk and performance of their investments are truly being provided a significant and greater benefit where the defined contribution system is replaced with a defined benefit system in which the employer bears the risk of market fluctuations and investment performance, especially where those members decide through an election process whether to trade the defined contribution system for a defined benefit system.
§18-7C-3. Definitions.
     As used in this article, unless the context clearly requires a different meaning:
     (1) "Defined Contribution System" means the Teachers Defined Contribution System created and established in article seven-b of this chapter.
     (2) "Existing retirement system" or "State Teachers Retirement System" means the State Teachers Retirement System created and established in article seven-a of this chapter.
     (3) "Board" means the Consolidated Public Retirement Board created and established in article ten-d, chapter five of this code and its employees.
     (4) "Member" means and includes any person who has at least one dollar in the Defined Contribution System.
     (5) "Assets" or "all assets" means all member contributions, employer contributions and interest or asset appreciation in a member's Defined Contribution Account, less any applicable fees as approved by the Board.
     (6) "Salary" or "annual salary" means the annual contract salary for those persons working in accordance with an employment contract and in any other event as an annualized amount determined by multiplying a person's hourly rate of pay by two thousand eighty hours.
     (7) "Date of merger" means, in the event of a positive vote on the merger, the first day of July, two thousand six.
_____(1) "Assets" means all member contributions and employer contributions made on the member's behalf to the Defined Contribution Retirement System and earnings thereon, less any applicable fees as approved by the Board: Provided, That if a member has withdrawn or cashed out any amounts, the amounts must have been repaid.
_____(2) "Board" means the Consolidated Public Retirement Board established in article ten-d, chapter five of this code and its employees.
_____(3) "Date of merger" means, in the event of a positive vote on the merger, the first day of July, two thousand six.
_____(4) "Defined Contribution Retirement System" means the Teachers' Defined Contribution Retirement System established in article seven-b of this chapter.
_____(5) "Salary" means:
_____(A) For a member contributing to the Defined Contribution Retirement System during the two thousand five fiscal year, the actual salary earned for the two thousand five fiscal year divided by the employment service earned in the two thousand five fiscal year.
_____(B) For a member not contributing to the Defined Contribution Retirement System during the two thousand five fiscal year, the contract salary on the date of rehire.
_____(6) "State Teachers Retirement System" means the State Teachers Retirement System established in article seven-a of this chapter.
§18-7C-4. Merger.
     (a) Subject to the provisions of subsection (b) of this section, on the first day of July, two thousand six, the Teachers' Defined Contribution Retirement System created and established in this article shall be merged and consolidated with the State Teachers Retirement System created and established in article seven-a of this chapter pursuant to the provisions of this article. Provided, That if the
     (b) If a majority of the eligible voting members of the Teachers' Defined Contribution Retirement System do not elect in favor of the merger, then all of the provisions of this article are void and of no force and effect, and the Defined Contribution Retirement System created and established in article seven-b of this chapter shall continue continues as the retirement system for all members in that System as of the thirtieth day of June, two thousand six. Provided, however, That prior to the merger and consolidation the State shall deposit into the Teachers Retirement System the amount necessary to cover any additional unfunded actuarial accrued liability which results to the system on the date that the assets and liabilities of the Teachers Defined Contribution Retirement System are merged into the Teachers Retirement System as certified by the Consolidated Public Retirement Board.
§18-7C-5. Notice, education, record-keeping requirements.
     (a) Commencing not later than the first day of August, two thousand five, the Consolidated Public Retirement Board shall begin an educational program with respect to the merger of the Defined Contribution Plan Retirement System with the State Teachers Retirement System.
     (1) This education educational program shall address, at a minimum:
     (A) The law providing for the merger;
     (B) The mechanics of the merger;
     (C) The election process;
     (D) Relevant dates and time periods;
     (E) The benefits, potential advantages and potential disadvantages if members fail or refuse to approve the merger and thereby elect to remain in the Defined Contribution Retirement System;
     (F) The benefits, potential advantages and potential disadvantages of becoming a member of the State Teachers Retirement System;
     (G) Potential state and federal tax implications in general attendant to the various options available to the members; and
     (H) Any other pertinent information considered relevant by the Board.
     (2) The Board shall provide this disseminate the information through:
     (A) Its website; by
     (B) Computer programs;
_____(C) Written materials or electronic materials or both, written and electronic materials delivered to each member; and by
     (D) Classes or seminars if, in the best judgment of the Board, the classes and classes or seminars are required to provide the necessary education for members a member to make an informed decision with respect to the election; The Board shall also provide this information through computer programs, or
     (E) At the discretion of the Board, through a program of individual counseling which is optional on the part of the member; and by
     (F) Through any other educational program or programs considered necessary by the Board.
     (b) The Board shall provide each member with a copy of the written or electronic educational materials and with a copy of the notice of the election.
     (1) The notice shall provide full and appropriate disclosure regarding the merger and of the election process, including the date of the election.
     (2) The Board also shall also cause notice of the election to be published in at least ten newspapers of general circulation in this state. This notice shall be:
     (A) By Class III legal advertisement published in accordance with the provisions of article three, chapter fifty-nine of this code; and The Board shall cause this notice to be
     (B) Published not later than thirty days prior to the beginning of the election period and not sooner than sixty days prior to the beginning of the election period pursuant to section eight of this article.
     (c) It is the responsibility of each member of the Defined Contribution Plan Retirement System to keep the Board informed of his or her current address. If a A member who does not keep the Board informed of his or her current address, he or she is considered to have waived his or her right to receive any information from the Board with respect to the purposes of this article.
     (d) Once the Board has complied with the provisions of this section, every each member of the Defined Contribution Plan Retirement System is considered to have actual notice of the election and all matters pertinent to the election.
§18-7C-6. Conversion of assets from Defined Contribution Retirement System to State Teachers Retirement System; contributions; loans.

     (a) If a majority of members voting elect to merge the Defined Contribution Retirement System into the State Teachers Retirement System:
     (1) The consolidation and merger shall be is governed by the provisions of this article;
     (2) The Defined Contribution Retirement System shall does not exist after the thirtieth day of June, two thousand six; and
     (3) All members of that System shall become members of the State Teachers Retirement System as provided in this article.
     (b) Following the election, if the vote is in favor of the merger, the Board shall transfer all assets properties held in defined contribution account into the Defined Contribution Retirement System's Trust Fund to the State Teachers Retirement System. and members have the option to pay into the State Teachers Retirement System a one and one-half of one percent contribution for service in the Defined Contribution Plan being recognized in the State Teachers Retirement System. This contribution shall be calculated based on the member's salary as of the thirtieth day of June, two thousand five, and the members attained age on that date, applying both an annual backward salary scale projection from that date for prior years based upon the salary scale assumption applied in the actuarial valuation dated the first day of July, two thousand four, for the Teachers Retirement System and a one year forward salary scale projection for the year ending on the thirtieth day of June, two thousand six
     (c) To receive full credit in the State Teachers Retirement System for service in the Defined Contribution Retirement System for which assets are transferred, members shall pay into the State Teachers Retirement System a one and one-half percent contribution. This contribution shall be calculated as one and one-half percent of the member's estimated total earnings for which assets are transferred. 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.________
_____(1) For a member contributing to the Defined Contribution Retirement System at any time during the two thousand five fiscal year and commencing membership in the State Teachers Retirement System on the first day of July, two thousand six:
_____(A) The estimated total earnings shall be calculated based on the member's salary and the member's age nearest birthday on the thirtieth day of June, two thousand five;
_____(B) This calculation shall apply both an annual backward salary scale from that date for prior years' salaries and a forward salary scale for the salary for the two thousand six fiscal year.
_____(2) For a member not contributing to the Defined Contribution Retirement System during the two thousand five fiscal year:
_____(A) The estimated total earnings shall be calculated based on the member's salary and the member's age nearest birthday on the member's date of rehire.
_____(B) This calculation shall apply a backward salary scale from the member's date of rehire for prior years' salaries.
_____(3) The calculations in subdivisions (1) and (2) of this subsection are based upon the salary scale assumption applied in the West Virginia Teachers Retirement System Actuarial Valuation as of the first day of July, two thousand four, prepared for the Consolidated Public Retirement Board. This salary scale shall be applied regardless of breaks in service.
_____(c) (d) The Board shall make available to the members each member a loan for the purpose of paying all or part of the one and one-half percent contribution required in this section. The loan shall be offered in accordance with the provisions of section thirty-four, article seven-a of this chapter. to be used by the members to pay all or a part of the one and one-half percent amount established in this section.
     (1) Notwithstanding any provision of this code, any rule or any policy of the Board to the contrary, the interest rate on any such loan used to pay the one and one-half percent amount may not exceed seven and one-half percent per annum. and the The amount total borrowed for this section may not exceed twelve thousand dollars.
     (2) In the event a plan loan made pursuant to this section is used to pay the one and one-half percent, the Board shall make any necessary actuarial adjustments at the time the loan is made.
     (3) Subject to the provisions of subdivision (4) of this subsection, the Board shall make this plan loan available for members until the thirtieth day of June, two thousand seven.
     (4) Upon returning to employment, a member who has left employment but not withdrawn his or her funds shall pay the one and one-half percent contribution within one year of being rehired. The member is eligible for one year following the date of rehire to obtain a loan for paying the contribution.
     (d) (e) The Board shall develop and institute a payroll deduction program for the repayment of the plan loan established in this section.
     (e) (f) If the merger and consolidation is duly elected: by a majority of those persons voting
     (1) As of the first day of July, two thousand six, the members' contribution rate shall become becomes six percent of his or her salary or wages; and
     (2) All members who make a contribution into the State Teachers Retirement System on or after the first day of July, two thousand six, shall be are governed by the provisions of article seven-a of this chapter, subject to the provisions of this article.
     (f) In the event
     (g) Subject to the provisions of subdivision (1) of this subsection, if a member has withdrawn or cashed out part of his or her defined contribution plan assets, that member will not be given receive credit for those moneys cashed out or withdrawn. The Board shall make an actuarial a determination as to the amount of credit a member loses based on the periods of time and the amounts he or she has withdrawn or cashed out, which shall be expressed as a loss of service credit. Provided, That
     (1) A member may repay those amounts he or she previously cashed out or withdrew, along with interest as determined by the Board, and receive the same credit as if the withdrawal or cash out never occurred. Such a member also shall pay the one and one-half percent contribution to receive full credit for the cashed out or withdrawn amounts being repaid to the State Teachers Retirement System.
_____(2) The loan provided in this section is not available to members to repay previously cashed out or withdrawn moneys.
_____(3) If the repayment is occurs five or more years following the cash out or withdrawal, then he or she must the member also shall repay any forfeited employer contribution account balance along with interest determined by the Board. in addition to repaying the cash out or withdrawn amount
     (g) Where the
_____(h) Notwithstanding any provision of subsection (g) to the contrary, if a member has cashed out or withdrawn any of his or her teacher defined contribution plan account balance assets after the last day of June, two thousand one, and that member wishes chooses to repurchase defined contribution plan that service after the thirtieth day of June, two thousand six, then the member shall repay the previously distributed amounts and any applicable interest to the teachers retirement plan State Teachers Retirement System.
_____(h) Any prior
     (i) Any service in the State Teachers Retirement System a member may have has before the date of the merger is not affected by the provisions of this article.
§18-7C-7. Service credit in State Teachers Retirement System following merger; adjustments.

     (a) Any member transferring all of his or her assets from the Defined Contribution Retirement System to the State Teachers Retirement System pursuant to the provisions of this article, and who has not made any withdrawals or cash outs from his or her defined contribution plan assets, is entitled to service credit in the State Teachers Retirement System for each year, or part of a year, as governed by the provisions of article seven-a of this chapter, the member worked and contributed to the Defined Contribution Plan Retirement System.
_____(b) Any member who has made withdrawals or cash outs will receive service credit based upon the amounts transferred. and The Board shall make the appropriate actuarial determination of and the actuarial adjustment to the service credit the member will receive.
_____(c) Any member's Defined Contribution Retirement System service credit will be reduced by twenty-five percent if the member does not pay the one and one-half percent contribution required by this article upon transfer to the State Teachers Retirement System. §18-7C-8. Election; Board may contract for professional services.
     (a) The Board shall arrange for and hold an election for the members of the Defined Contribution plan Retirement System who are eligible to vote, pursuant to the provisions of subsection (d) of this section, on the issue of merging and consolidating the Defined Contribution Plan Retirement System into the State Teachers Retirement Plan with the result being that System.
_____(b) If a majority of the eligible voters members casting ballots vote in the positive in the election votes in the affirmative on the issue:
     (1) All members of the Defined Contribution Plan Retirement System will transfer, or have transferred, all assets held by them or on their behalf in the Defined Contribution Plan Retirement System to the State Teachers Retirement System; and they shall become members of and be
     (2) On the date of the merger each member becomes a member and is entitled to the benefits of the State Teachers Retirement System; and be
     (3) Each member is governed by the provisions of the State Teachers Retirement System subject to the provisions of this article. Provided, That at least
     (c) If fewer than one half of the members eligible to vote of the Defined Contribution Plan must vote on the question in order for cast ballots in the election, to be the election is not valid and binding.
     (b) (d) Any person who has one dollar or more in the defined contribution account created and established pursuant to article seven-b of this chapter assets in the Defined Contribution Retirement System on the last day of December, two thousand five, may vote on the question of the merger and is eligible to vote in the election.
_____(c) (e) The Notwithstanding any other provision of this code to the contrary, the Board may do all things necessary and convenient to maintain the Defined Contribution Retirement System and the State Teachers Retirement System during the transitional period and may retain the services of the professionals it considers necessary to do so. The Board may also retain the services of the professionals it deems necessary to:
     (1) Assist in the preparation of educational materials for members of the Defined Contribution Plan Retirement System who are eligible to vote on the merger to inform these members of their options in the election;
     (2) Assist in the educational process of the members who are eligible to vote on the merger;
     (3) Assist in the election process and the election; and
     (4) Ensure compliance with all relevant state and federal laws.
     (d) (f) Due to the time constraints inherent in the merger process set forth in this article in specific, and due to the nature of the professional services required by the Consolidated Public Retirement Board in general, the provisions of article three, chapter five-a of this code, relating to the Division of Purchasing of the Department of Administration, do not apply to any contracts for any actuarial services, investment services, legal services or other professional services authorized under the provisions of this article.
     (e) (g) The election provided for in this section may be held through certified mail or in any other way method the Board determines is in the best interest of the members. Each ballot shall contain the following language, in bold fifteen-point type: "By casting this ballot I am making an educated, informed and voluntary choice as to my retirement and the retirement system of which I wish to be a member. I am also certifying that I understand the consequences of my vote in this election." Each ballot shall be signed by the member voting. The Board shall retain the ballots in a permanent file. Any unsigned ballot is void.
     (f) (h) The election period shall begin not later than the first day of March, two thousand six. and the The Board shall ascertain the results of the election not later than the last day of March, two thousand six. The Board shall certify the results of the election to the Governor, to the Legislature and to the members not later than the fifth day of April, two thousand six.
     (g) (i) The election period shall terminate and no votes may terminates and votes may not be cast or counted after the twelfth day of March, two thousand six, except that if the election is unless the election is conducted through the United States mail. If conducted through the United States mails, the ballot mail, any ballot shall be postmarked not postmarked later than the twelfth day of March, two thousand six, in order to is void and may not be counted.
     (h) (j) The Board shall take all necessary steps to see that the merger does not affect the qualified status with the Internal Revenue Service of either retirement plan.
§18-7C-9. Election considered final.
     (a) The election is considered final and each member, whether he or she votes or fails voted or failed to vote, shall thereafter be is bound by the results of the election. Every member is considered to have made an informed, educated, knowing and voluntary decision and choice with respect to the election. Those members who fail or refuse failed or refused to vote are also considered to have made an informed, educated, knowing and voluntary decision and choice with respect to the election and with respect to voting and shall be are bound by the results of the election as if he or she had voted in the election.
     (b) Only one election may be held pursuant to the provisions of this article. on the issue of merging and consolidating the Defined Contribution Plan with the State Teachers Retirement Plan
§18-7C-10. Qualified domestic relations orders.
     Any member having a qualified domestic relations order against his or her defined contribution account is allowed to repurchase service in the State Teachers Retirement System. by repaying The member shall repay any moneys previously distributed to the alternate payee along with the interest as set by the Board. Provided, That a member shall repay any amounts under this section The member shall repay by the last day of June, two thousand twelve. The provisions of this section are void and of no effect if the members of the Defined Contribution Plan fail to elect to merge and consolidate the Defined Contribution Plan Retirement System with the State Teachers Retirement System.
§18-7C-11. Vesting.
     Any member who works one hour or more after the date of merger provided in this article occurs is subject to the vesting schedule set forth in article seven-a of this chapter: Provided, That if a member is vested under the Defined Contribution Plan Retirement System and his or her last contribution was not made to the State Teachers Retirement System, that member is subject to the vesting schedule set forth in article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
     (a) Any member of the Defined Contribution Plan Retirement System who has made a contribution to the State Teachers Retirement System after the date of merger is guaranteed a minimum benefit equal to his or her member contributions plus the vested portion of employer contributions made on his or her behalf to the Defined Contribution Plan Retirement System as of the thirtieth day of June, two thousand six, plus his or her vested employer account balance as of that date any earnings thereon, as stated by the Board or the Board's professional contractor.
     (b) A member of the Defined Contribution Plan Retirement System who has made contributions to the State Teachers Retirement System after the thirtieth day of June, two thousand six, where the Defined Contribution Plan Retirement System has been merged into the State Teachers Retirement System, pursuant to the provisions of this article shall have upon eligibility to receive a distribution under article seven-a of this chapter, shall have at a minimum the following three options:
     (1) The right to receive an annuity from the State Teachers Retirement System created and established in article seven-a of this chapter based upon the benefit and vesting provisions of that article seven-a of this chapter;
     (2) The right to withdraw from the State Teachers Retirement Plan System and receive his or her member accumulated contributions in the State Teachers Retirement System, plus regular interest thereon, as set forth in article seven-a of this chapter; or
     (3) The right to withdraw and receive his or her original vested defined contribution account balance as of the date of the merger member contributions plus the vested portion of employer contributions made on his or her behalf to the Defined Contribution Retirement System, plus any earnings thereon as of the date of the merger, as determined by the Board or its professional third-party benefits administrator pursuant to the vesting provisions of section twelve of this article. This amount may be distributed in a lump sum or in periodic payments as elected by the member.
     (c) Any member of the Teachers Defined Contribution Retirement System who makes no contribution to the State Teachers Retirement System following approval of the merger and following the date of merger is guaranteed the receipt of the amount in his or her total vested account in the Defined Contribution Plan Retirement System on the date of merger, plus interest thereon, at four percent accruing from the date of merger. This amount may be distributed in a lump sum or in periodic payments as elected by the member.
§18-7C-13. Due process and right to appeal.
     Any person aggrieved by any actuarial determination made by the Board following the election, if the result of the election is in favor of merger and consolidation, may petition the Board and receive an administrative hearing on the matter in dispute. The administrative decision may be appealed to a circuit court.;
     And,
     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; removing the requirement that the state deposit money to cover any additional unfunded liability before the merger; 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 provisions regarding validity of election result; 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.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Senate Bill No. 4010, 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, 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 elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 4010) passed with its House of Delegates amended 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, 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.
      A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
     Eng. Senate Bill No. 4015, Supplementing, amending, reducing and increasing items of existing appropriation from Department of Agriculture, Fees Fund.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
     Eng. Senate Bill No. 4016, Making supplementary appropriation to Department of Agriculture, Agricultural Land Protection Authority.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
     Eng. Senate Bill No. 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.
      A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     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 motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     On further motion of Senator Chafin, the Senate acceded to the request of the House of Delegates and receded from its amendments to the bill.
     At the request of Senator Chafin, unanimous consent being granted, further consideration of the bill was placed under unfinished business.
      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. 407--A Bill to amend and reenact §5F-2-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §5F-2-7, all relating to the power and authority of department secretaries to transfer employees between departments; establishing guidelines for transfer of employees; protecting rights of transferred employees; requiring annual reports; and requiring promulgation of emergency and legislative rules.
     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.
      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, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
     The nays were: Minear and Weeks--2.
     Absent: None.
      The bill (Eng. H. B. No. 407) was then read a second time.
     On motion of Senator Bowman, the following amendment to the bill was reported by the Clerk and adopted:
     On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH

OF STATE GOVERNMENT.

ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-2. Power and authority of secretary of each department.
     (a) Notwithstanding any other provision of this code to the contrary, the secretary of each department shall have plenary power and authority within and for the department to:
     (1) Employ and discharge within the office of the secretary employees as may be necessary to carry out the functions of the secretary, which employees shall serve at the will and pleasure of the secretary;
     (2) Cause the various agencies and boards to be operated effectively, efficiently and economically, and develop goals, objectives, policies and plans that are necessary or desirable for the effective, efficient and economical operation of the department;
     (3) Eliminate or consolidate positions, other than positions of administrators or positions of board members, and name a person to fill more than one position;
     (4) Transfer permanent state employees between departments in accordance with the provisions of section seven of this article;
_____(4) (5) Delegate, assign, transfer or combine responsibilities or duties to or among employees, other than administrators or board members;
     (5) (6) Reorganize internal functions or operations;
     (6) (7) Formulate comprehensive budgets for consideration by the Governor, and transfer within the department funds appropriated to the various agencies of the department which are not expended due to cost savings resulting from the implementation of the provisions of this chapter: Provided, That no more than twenty-five percent of the funds appropriated to any one agency or board may be transferred to other agencies or boards within the department: Provided, however, That no funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other account or funds specifically exempted by the Legislature from transfer, except that the use of appropriations from the State Road Fund transferred to the Office of the Secretary of the Department of Transportation is not a use other than the purpose for which the funds were dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment consolidates agencies, boards or functions, the appropriate secretary may transfer the funds formerly appropriated to the agency, board or function in order to implement consolidation. The authority to transfer funds under this section shall expire on the thirtieth day of June, two thousand five;
     (7) (8) Enter into contracts or agreements requiring the expenditure of public funds, and authorize the expenditure or obligation of public funds as authorized by law: Provided, That the powers granted to the secretary to enter into contracts or agreements and to make expenditures or obligations of public funds under this provision shall not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
     (8) (9) Acquire by lease or purchase property of whatever kind or character and convey or dispose of any property of whatever kind or character as authorized by law: Provided, That the powers granted to the secretary to lease, purchase, convey or dispose of such property shall not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
     (9) (10) Conduct internal audits;
     (10) (11) Supervise internal management;
     (11) (12) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this code, to implement and make effective the powers, authority and duties granted and imposed by the provisions of this chapter in accordance with the provisions of chapter twenty-nine-a of this code;
     (12) (13) Grant or withhold written consent to the proposal of any rule, as defined in section two, article one, chapter twenty-nine-a of this code, by any administrator, agency or board within the department. Without written consent, no proposal for a rule shall have any force or effect;
     (13) (14) Delegate to administrators the duties of the secretary as the secretary may deem appropriate from time to time to facilitate execution of the powers, authority and duties delegated to the secretary; and
     (14) (15) Take any other action involving or relating to internal management not otherwise prohibited by law.
     (b) The secretaries of the departments hereby created shall engage in a comprehensive review of the practices, policies and operations of the agencies and boards within their departments to determine the feasibility of cost reductions and increased efficiency which may be achieved therein, including, but not limited to, the following:
     (1) The elimination, reduction and restriction of the state's vehicle or other transportation fleet;
     (2) The elimination, reduction and restriction of state government publications, including annual reports, informational materials and promotional materials;
     (3) The termination or rectification of terms contained in lease agreements between the state and private sector for offices, equipment and services;
     (4) The adoption of appropriate systems for accounting, including consideration of an accrual basis financial accounting and reporting system;
     (5) The adoption of revised procurement practices to facilitate cost-effective purchasing procedures, including consideration of means by which domestic businesses may be assisted to compete for state government purchases; and
     (6) The computerization of the functions of the state agencies and boards.
     (c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the powers granted to the secretaries herein shall be exercised by the secretary if to do so would violate or be inconsistent with the provisions of any federal law or regulation, any federal-state program or federally delegated program or jeopardize the approval, existence or funding of any program.
     (d) The layoff and recall rights of employees within the classified service of the state as provided in subsections (5) and (6), section ten, article six, chapter twenty-nine of this code shall be limited to the organizational unit within the agency or board and within the occupational group established by the classification and compensation plan for the classified service of the agency or board in which the employee was employed prior to the agency or board's transfer or incorporation into the department: Provided, That the employee shall possess the qualifications established for the job class. The duration of recall rights provided in this subsection shall be limited to two years or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state as provided in sections ten and ten-a, article six, chapter twenty-nine of this code. or the right of classified employees of the Board of Regents to the procedures and protections set forth in article twenty-six-b, chapter eighteen of this code.
     (e) Notwithstanding any other provision of this code to the contrary, the secretary of each department with authority over programs which are payors for prescription drugs, including, but not limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions, including nursing homes and veteran's homes, the Division of Rehabilitation, public health departments, the Bureau of Medical Services and other programs that are payors for prescription drugs, shall cooperate with the Office of the Pharmaceutical Advocate established pursuant to section four, article sixteen-d, chapter five of this code for the purpose of purchasing prescription drugs for any program over which they have authority.
§5F-2-7. Interdepartmental transfer of permanent state employees.      (a) A department secretary may enter into a memorandum of understanding with another department secretary to transfer a permanent state employee from a position that is to be consolidated or eliminated to a funded vacant position in another department in accordance with the provisions of this section and the law. To support the transfer of the employee, a department secretary may also transfer furniture and equipment, except motor vehicles and any assets purchased by designated funds for specific uses and purposes, the removal of which is prohibited by law or would jeopardize federal funds, grants or other funding sources.
      (b) The transferred employee shall receive the same level of benefits and rate of compensation or higher and shall retain the same level of seniority.
      (c) An employee shall be given notice of the proposed transfer at least fifteen days prior to the transfer. During the notice period, an affected employee may agree to be voluntarily transferred.
     (d) If an employee does not volunteer to be transferred, then an involuntary transfer may be ordered. An involuntary transfer shall begin with the least senior permanent employee who qualifies for the position.
      (e) A classified employee who is transferred shall retain his or her classified status: Provided, That any transfer shall be made in accordance with the law.
      (f) An involuntary transfer may be rejected by an employee if the involuntary transfer would require the employee to travel thirty miles or more, one way, than the distance the employee currently travels from his or her current job site.
      (g) An employee who qualifies for and chooses to reject a transfer shall be laid off in accordance with the law.
     (h) Nothing in this section shall abridge any other rights provided by law.
     (i) Prior to the thirty-first day of December, two thousand five, the Division of Personnel shall promulgate an emergency rule in accordance with the provisions of article three, chapter twenty- nine-a of this code to effectuate the provisions of this section.
     (j) The Division of Personnel is authorized to promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this section.
     (k) Annually, on or before the first day of January, the Division of Personnel shall report to the Joint Committee on Government and Finance on all interdepartmental employee transfers, including, but not limited to, voluntary and involuntary transfers, furniture and equipment transfers, and the departments involved in the transfers.
     The bill, as amended, was ordered to third reading.
     Having been engrossed, the bill (Eng. H. B. No. 407) 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. 407) 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. H. B. No. 407) 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 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. 4020, Relating to salaries of state officials.
     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. 4020) 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:
     On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §6-7-2a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §19-23-4 of said code be amended and reenacted; that §21A-4-5 of said code be amended and reenacted; and that §24-1-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.

ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers; appointment; qualifications; powers and salaries of such officers.

  (a) Each of the following appointive state officers named in this subsection shall be appointed by the Governor, by and with the advice and consent of the Senate. Each of the appointive state officers serves at the will and pleasure of the Governor for the term for which the Governor was elected and until the respective state officers' successors have been appointed and qualified. Each of the appointive state officers are subject to the existing qualifications for holding each respective office and each has and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each office.
  Prior to the first day of July, two thousand one, each such named appointive state officer shall continue to receive the annual salaries they were receiving as of the effective date of the enactment of this section in two thousand one, and thereafter, notwithstanding any other provision of this code to the contrary, the annual salary of each named appointive state officer shall be as follows: The appointive state officers subject to this subsection are as follows:
__Administrator Commissioner, Division of Highways; ninety thousand dollars administrator Commissioner, State Tax Division; sixty-five thousand dollars administrator Commissioner, Division of Corrections; seventy-five thousand dollars administrator Director, Division of Natural Resources; seventy thousand dollars Superintendent, West Virginia State Police; seventy-five thousand dollars administrator Director, Lottery division, seventy-five thousand dollars Director, Public Employees Insurance Agency; seventy-five thousand dollars administrator Commission; Commissioner, Division of Banking; sixty thousand dollars administrator, division of Commissioner, Insurance sixty thousand dollars administrator Commissioner of West Virginia; Commissioner, Division of Culture and History; fifty-five thousand dollars administrator Commissioner, Alcohol Beverage Control Commission seventy thousand dollars administrator Administration; Commissioner, Division of Motor Vehicles; seventy thousand dollars Director, Division of Personnel; fifty-five thousand dollars Adjutant General; seventy-five thousand dollars Chairman, Health Care Authority; seventy thousand dollars members, Health Care Authority; sixty thousand dollars Director, Human Rights Commission; forty-five thousand dollars administrator Commissioner, Division of Labor; sixty thousand dollars administrator Director, Division of Veterans' Affairs; forty-five thousand dollars administrator Director, Division of Homeland Security and Emergency services forty-five thousand dollars; Management; members, Board of Parole; forty-five thousand dollars; members, Employment Security Review Board seventeen thousand dollars members, workers' compensation appeal board, seventeen thousand eight hundred dollars administrator Commissioner, Bureau of Employment Programs; seventy thousand dollars; administrator, bureau of commerce, seventy thousand dollars; administrator, bureau of environment, seventy thousand dollars and Director, Office of Miners' Health, Safety and Training; sixty-five thousand dollars; Secretaries of the departments shall be paid an annual salary as follows: Secretary, Department of Health and Human Resources; ninety thousand dollars Secretary, Department of Transportation; seventy-five thousand dollars Secretary, Department of tax and Revenue; seventy-five thousand dollars Secretary, Department of Military Affairs and Public Safety; seventy-five thousand dollars Secretary, Department of Administration; seventy-five thousand dollars Secretary, Department of Education and the Arts; seventy-five thousand dollars and Secretary, Department of Commerce; and Secretary, Department of Environmental Protection. seventy-five thousand dollars
  (b) Each of the state officers named in this subsection shall continue to be appointed in the manner prescribed in this code and, prior to the first day of July, two thousand two, each of the state officers named in this subsection shall continue to receive the annual salaries he or she was receiving as of the effective date of the enactment of this section in two thousand two, and shall thereafter, notwithstanding any other provision of this code to the contrary, be paid an annual salary as follows:
  Administrator, division Director, Board of Risk and Insurance Management; fifty-five thousand dollars Director, Division of Rehabilitation Services; sixty thousand dollars Executive Director, Educational Broadcasting Authority; sixty thousand dollars Secretary, West Virginia Library Commission; sixty-seven thousand dollars Director, Geological and Economic Survey; fifty-two thousand five hundred dollars Executive Director, Prosecuting Attorneys Institute; sixty thousand dollars Executive Director, Public Defender Services; sixty thousand dollars Commissioner, Bureau of Senior Services; seventy thousand dollars Director, State Rail Authority; fifty-five thousand dollars Executive Secretary Director, Women's Commission; thirty-one thousand dollars Director, Hospital Finance Authority; twenty-six thousand dollars member, racing commission, twelve thousand dollars; chairman, public service commission, seventy thousand dollars; and members, public service commission, seventy thousand dollars Director, Forestry Division; Director, Division of Juvenile Services; Executive Director, Regional Jail Authority; Commissioner, Oil and Gas Conservation Commission; and Director, Division of Protective Services.
  (c) No increase in the salary of any appointive state officer pursuant to this section shall be paid until and unless the appointive state officer has first filed with the State Auditor and the Legislative Auditor a sworn statement, on a form to be prescribed by the Attorney General, certifying that his or her spending unit is in compliance with any general law providing for a salary increase for his or her employees. The Attorney General shall prepare and distribute the form to the affected spending units.
  (d) Any tenured or classified state employee who assumes the duties of any of the positions subject to the Senior Executive Service Salary Schedule provided in subsection (e) of this section on an "acting" or "interim" basis and receives an increase in salary shall have their salary reduced by an equal amount upon vacating the "acting" or "interim" position: Provided, That any employee assuming such "acting" or "interim" assignment and continuing in the position previously held shall be entitled, upon completion of such assignment, to any general salary increase provided and received by state employee incumbents occupying the same job class held by the tenured or classified employee prior to the "acting" or "interim" assignment.
__(e) Each state officer named in subsections (a) and (b) of this section shall continue to receive the annual salaries they were receiving as of the effective date of the enactment of this section in the year two thousand five, and shall thereafter, notwithstanding any other provision of this code to the contrary, be subject to the following Senior Executive Service Salary Schedule and shall be paid an annual salary within the salary range as designated for that position by the Governor:
Senior Executive Service Salary Schedule

Pay- grade Minimum Maximum Position
E1 26,000 40,000 Executive Director, Women's Commission
Director, Hospital Finance Authority
E2 45,000 60,000 Director, Division of Veterans' Affairs
Director, Human Rights Commission
Director, Homeland Security and Emergency Management
Director, State Rail Authority
Members, Board of Parole
Director, Division of Protective Services
Commissioner, Oil and Gas Conservation Commission
E3 52,500 78,984 Director, Geological and Economic Survey
Exec. Director, Public Defender Services
Director, Board of Risk and Insurance Management
Commissioner, Division of Culture and History
Secretary, West Virginia Library Commission
Commissioner, Alcohol Beverage Control Administration
Director, Office of Miners' Health, Safety and Training
Exec. Director, Educational Broadcasting Authority
Commissioner, Division of Labor
Exec. Director, Prosecuting Attorneys Institute
E4 55,000 85,464 Commissioner, Division of Banking
Commissioner, Bureau of Senior Services
Director, Forestry Division
Director, Division of Personnel
E5 60,000 91,848 Commissioner, Bureau of Employment Programs
Commissioner, Division of Motor Vehicles
Director, Division of Rehabilitation Services
Members, Health Care Authority
E6 60,000 98,736 Commissioner, State Tax Division
Director, Division of Natural Resources
Commissioner, Insurance Commissioner of West Virginia
Chairman, Health Care Authority
E7 75,000 106,128 Commissioner, Division of Highways
Director, Lottery Commission
Commissioner, Division of Corrections
Director, Division of Juvenile Services
Executive Director, Regional Jail Authority
Superintendent, West Virginia State Police
Adjutant General
Secretary, Department of Education and the Arts
Secretary, Department of Military Affairs and Public
 Safety
Secretary, Department of Environmental Protection
Secretary, Department of Administration
Secretary, Department of Commerce
Secretary, Department of Revenue
E8 90,000 114,120 Secretary, Department of Health and Human Resources
Secretary, Department of Transportation
__(f) Notwithstanding the provisions of subsection (e) of this section, each member of any boards contained in the Senior Executive Salary Schedule shall receive an equal salary.
CHAPTER 19. AGRICULTURE.

ARTICLE 23. HORSE AND DOG RACING.
§19-23-4. West Virginia Racing Commission continued as a public corporation; composition; terms; vacancies; qualifications, expenses of members; principal office; meetings; election of officers; quorum; inspection of records; annual report.

  (a) The "West Virginia Racing Commission" is continued in existence as a public corporation and, as such, may contract and be contracted with, plead and be impleaded, sue and be sued and have and use a common seal.
  (b) The Racing Commission shall consist of three members, not more than two of whom shall belong to the same political party, to be appointed by the Governor by and with the advice and consent of the Senate. The members of the Racing Commission shall receive an annual salary of twelve thousand dollars. The term of office for the members of the Racing Commission is four years, and until their successors have been appointed and have qualified, and members of the Racing Commission may serve any number of successive terms. The members of the Racing Commission in office on the effective date of the amendment and reenactment of this section in two thousand one shall, unless removed by the Governor after the effective date of this article, continue to serve until their terms expire and until their successors have been appointed and have qualified. The members of the Racing Commission in office on the effective date of the enactment of this section in the fourth extraordinary session of the Legislature, two thousand five, shall, unless removed by the Governor as authorized by law, continue to serve until their terms expire and until their successors have been appointed and have qualified. Any vacancy in the office of a member of the Racing Commission shall be filled by appointment by the Governor for the unexpired term of the member whose office shall be vacant. No person is eligible for appointment to or to serve upon the Racing Commission:
  (1) Unless he or she is an actual and bona fide resident of this state, shall have resided in this state for a period of at least five years next preceding his or her appointment, shall be a qualified voter of this state and be not less than twenty-five years of age;
  (2) Who directly or indirectly, or in any capacity, owns or has any interest, in any manner whatever, in any racetrack where horse or dog race meetings may be held, including, but not limited to, an interest as owner, lessor, lessee, stockholder or employee;
  (3) While serving as a member of the Legislature or as an elective officer of this state; or
  (4) Who has been or shall be convicted of an offense which, under the law of this state or any other state or of the United States of America, constitutes a felony or is a violation of article four, chapter sixty-one of this code.
  (c) Each member of the Racing Commission shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of his or her duties as a member of the Racing Commission.
  (d) The Racing Commission shall have its principal office at the seat of government and shall meet annually at its principal office in the month of January and at any other times and places designated by its Chairman. At the annual meeting, the Racing Commission shall elect from its membership a chairman and any other officers that are desired. Other meetings of the Racing Commission may be called by the Chairman on such notice to the other members prescribed by the Racing Commission.
  (e) A majority of the members of the Racing Commission constitute a quorum for the transaction of its business or the exercise of any of its powers and authority. No person not a bona fide member of the Racing Commission shall vote upon or participate in the deliberations of the Racing Commission on any matter which may come before it. All Racing Commission records, except as otherwise provided by law, shall be open to public inspection during regular office hours.
  (f) As soon as possible after the close of each calendar year, the Racing Commission shall submit to the Governor a report of the transactions of the Racing Commission during the preceding calendar year.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.

ARTICLE 4. BOARD OF REVIEW.
 §21A-4-5. Compensation and travel expenses.
               Notwithstanding the provisions of section two-a, article seven, chapter six of this code, each member of the Board shall receive an annual salary of twelve thousand six hundred seventeen thousand dollars and the necessary traveling expenses incurred in the performance of his duties.
               Requisition for traveling expenses shall be accompanied by a sworn and itemized statement which shall be filed with the Auditor and preserved as a public record.
               The salaries and expenses of the members shall be paid from the administration fund.
CHAPTER 24. PUBLIC SERVICE COMMISSION.

ARTICLE 1. GENERAL PROVISIONS.
§24-1-3. Commission continued; membership; salaries; Chairman; compensation.

          (a) The Public Service Commission of West Virginia is continued and directed as provided by this chapter and chapters twenty-four-a, twenty-four-b and twenty-four-d of this code. After having conducted a performance audit through its Joint Committee on Government Operations, pursuant to section nine, article ten, chapter four of this code, the Legislature hereby finds and declares that the Public Service Commission should be continued and reestablished. Accordingly, notwithstanding the provisions of section five of said article, the Public Service Commission shall continue to exist until the first day of July, two thousand three. The Public Service Commission may sue and be sued by that name. The Public Service Commission shall consist of three members who shall be appointed by the Governor, with the advice and consent of the Senate. The commissioners shall be citizens and residents of this state and at least one of them shall be duly licensed to practice law in West Virginia, with not less than ten years' actual work experience in the legal profession as a member of a state bar. No more than two of the commissioners shall be members of the same political party. Each commissioner shall, before entering upon the duties of his or her office, take and subscribe to the oath provided by section five, article IV of the Constitution of this state. The oath shall be filed in the Office of the Secretary of State. The Governor shall designate one of the commissioners to serve as chairman at the Governor's will and pleasure. The Chairman shall be the chief administrative officer of the Commission. The Governor may remove any commissioner only for incompetency, neglect of duty, gross immorality, malfeasance in office or violation of subsection (c) of this section.
          (b) The unexpired terms of members of the Public Service Commission at the time this subsection becomes effective are continued. Upon expiration of the terms, appointments Appointments are for terms of six years, except that an appointment to fill a vacancy is for the unexpired term only. The commissioners whose terms are terminated by the provisions of this subsection are eligible for reappointment The members of the Commission in office on the effective date of the enactment of this section in the fourth extraordinary session of the Legislature, two thousand five, shall, unless removed by the Governor as authorized by law, continue to serve until their terms expire and until their successors have been appointed and have qualified.
          (c) No person while in the employ of, or holding any official relation to, any public utility subject to the provisions of this chapter or holding any stocks or bonds of a public utility subject to the provisions of this chapter or who is pecuniarily interested in a public utility subject to the provisions of this chapter may serve as a member of the Commission or as an employee of the Commission. Nor may any commissioner be a candidate for or hold public office or be a member of any political committee while acting as a commissioner; nor may any commissioner or employee of the Commission receive any pass, free transportation or other thing of value, either directly or indirectly, from any public utility or motor carrier subject to the provisions of this chapter. In case any of the commissioners becomes a candidate for any public office or a member of any political committee, the Governor shall remove him or her from office and shall appoint a new commissioner to fill the vacancy created.
          (d) The salaries of members of the Public Service Commission and the manner in which they are paid established by the prior enactment of this section are continued. Effective the first day of July, two thousand one, the annual salary of each commissioner provided in section two-a, article seven, chapter six of this code shall be eighty thousand dollars and shall be paid in monthly installments from the special funds in the percentages that follow:
          (1) From the Public Service Commission Fund collected under the provisions of section six, article three of this chapter, eighty percent;
          (2) From the Public Service Commission Motor Carrier Fund collected under the provisions of section six, article six, chapter twenty-four-a of this code, seventeen percent; and
          (3) From the Public Service Commission Gas Pipeline Safety Fund collected under the provisions of section three, article five, chapter twenty-four-b of this code, three percent.
          In addition to the salary provided for all commissioners in section two-a, article seven, chapter six of this code this subsection, the Chairman of the Commission shall receive five thousand dollars per annum to be paid in monthly installments from the Public Service Commission Fund collected under the provisions of section six, article three of this chapter.
           On motion of Senator Yoder, the following amendment to the Finance committee amendment to the bill (S. B. No. 4020) was reported by the Clerk:
          On page six, section two-a, subsection (e), after the word "Governor:" by inserting the following proviso: "Provided, That the following pay scale, including increase in salary, shall not take effect until sixty days after the sales tax on food for human consumption, as provided for in section three, article fifteen, chapter eleven of this code, has been eliminated, and until such time as this sales tax on food is eliminated the rate of salary in effect as that which existed on the first day of July, two thousand five, shall remain in effect:".
          The question being on the adoption of Senator Yoder's amendment to the Finance committee amendment to the bill.
          Following discussion,
          The question being on the adoption of Senator Yoder's amendment to the Finance committee amendment to the bill, and on this question, Senator Yoder demanded the yeas and nays.
          The roll being taken, the yeas were: Barnes, Boley, Caruth, Guills, Harrison, McKenzie, Sprouse, Weeks and Yoder--9.
          The nays were: Bailey, Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President)--25.
          Absent: None.
           So, a majority of those present and voting not having voted in the affirmative, the President declared Senator Yoder's amendment to the Finance committee amendment to the bill (S. B. No. 4020) rejected.
           Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Bowman regarding Senator Yoder's amendment to the Finance committee amendment to Senate Bill No. 4020 were ordered printed in the Appendix to the Journal.
           The question now being on the adoption of the Finance committee amendment to the bill, the same was put and prevailed.
          The bill, as amended, was then ordered to engrossment and third reading.
          Engrossed Senate Bill No. 4020 was then read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Bailey, Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President)--24.
          The nays were: Barnes, Boley, Caruth, Guills, Harrison, McKenzie, Minear, Sprouse, Weeks and Yoder--10.
          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. 4020) 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. 4020--A Bill to amend and reenact §6-7-2a of the Code of West Virginia, 1931, as amended; to amend and reenact §19-23-4 of said code; to amend and reenact §21A-4-5 of said code; and to amend and reenact §24-1-3 of said code, all relating generally to salaries of state officials and employees generally; subjecting certain state officials to a Senior Executive Service Salary Schedule; providing for salary adjustments for tenured or classified state employees who assume certain duties on an "acting" or "interim" basis; equalizing the salaries of certain board members; continuing the salaries of members of the Racing Commission and the Public Service Commission as fixed statutory amounts; and making technical revisions.
          Senator Chafin moved that the bill take effect from passage.
          On this question, the yeas were: Bailey, Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President)--24.
          The nays were: Barnes, Boley, Caruth, Guills, Harrison, McKenzie, Minear, Sprouse, Weeks and Yoder--10.
          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. 4020) takes effect from passage.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
          Thereafter, at the request of Senator Sprouse, and by unanimous consent, the remarks by Senators Guills and Weeks regarding the passage of Engrossed Senate Bill No. 4020 were ordered printed in the Appendix to the Journal.
          [CLERK'S NOTE: The Senate failed to take a roll call vote on the suspension of the constitutional rule requiring a bill to be read on three separate days. Therefore, the bill did not pass the Senate at this time.]
          Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
          Your Committee on Finance has had under consideration
          Eng. Com. Sub. for House Bill No. 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.
          Now on second reading, having been read a first time and referred to the Committee on Finance on September 12, 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 (Eng. Com. Sub. for H. B. No. 414) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, 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. Com. Sub. for H. B. No. 414) was then read and third time and put upon its passage.
     Pending discussion,
     The question being "Shall Engrossed Committee Substitute for House Bill No. 414 pass?"
     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. Com. Sub. for H. B. No. 414) 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. Com. Sub. for H. B. No. 414) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Hunter regarding the passage of Engrossed Committee Substitute for House Bill No. 414 were ordered printed in the Appendix to the Journal.
     The Senate proceeded to the seventh order of business.
     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 unfinished business, having been received as a House message in earlier proceedings today, and now coming up in regular order, was reported by the Clerk.
     On motion of Senator Chafin, the Senate reconsidered its action by which in earlier proceedings today it acceded to the request of the House of Delegates and receded from its amendments to the bill.
     The vote thereon having been reconsidered,
     The question again being on the adoption of Senator Chafin's motion that the Senate accede to the request of the House of Delegates and recede from its amendments to the bill (Eng. H. B. No. 406).
     At the request of Senator Chafin, and by unanimous consent, his foregoing motion was withdrawn.
     The Senate proceeded to the ninth order of business.
      Senate Bill No. 4007, Relating generally to consumers sales and use taxes on food.
      On second reading, coming up in regular order, was reported by the Clerk.
     At the request of Senator Chafin, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's second reading calendar.
     Com. Sub. for Senate Bill No. 4009, Relating to regulating elections.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Com. Sub. for Com. Sub. for Senate Bill No. 4013, Amending certain provisions of the code involving horse and dog racing; distribution of certain proceeds.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Eng. Com. Sub. for House Bill No. 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 Senator Chafin, the following amendment to the bill was reported by the Clerk and adopted:
      On page five, by striking out everything after the enacting section and inserting in lieu thereof the provisions of Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 4013.
      The bill (Eng. Com. Sub. for H. B. No. 411), as amended, was then ordered to third reading.
     Senator Chafin moved that the constitutional rule requiring a bill to be read on three separate days be suspended.
     The roll being taken, the yeas were: Bailey, Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Unger, White, Yoder and Tomblin (Mr. President)--26.
     The nays were: Barnes, Boley, Caruth, Guills, Harrison, Minear, Sprouse and Weeks--8.
     Absent: None.
     So, less than four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule rejected.
     Without objection, the Senate returned to the third order of business.
      A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 402--A Bill to repeal §3-8- 5c of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto two new sections, designated §3-8-1a and §3- 8-2b; and to amend and reenact §3-8-2, §3-8-4, §3-8-5a, §3-8-7, §3- 8-8 and §3-8-12 of said code, all relating to regulating elections; defining terms; requiring candidates and persons making electioneering communications to keep and make available for inspection records of campaign-related contributions and spending; requiring persons who engage in electioneering communications to file financial statements with Secretary of State; contents of statement and filing requirements; penalties for filing delinquent or incomplete financial statements; granting the Secretary of State legislative and emergency rule-making authority; clarifying that electioneering communications made in coordination with a candidate or political party are considered contributions to such candidate or political party; increasing penalty for violations of prohibitions on corporate contributions to candidates or for electioneering communications; requiring political organizations to register with the Secretary of State prior to soliciting or accepting contributions; prohibiting political organizations from accepting contributions in excess of one thousand dollars before the primary and general elections; and making it unlawful to create more than one political organization with the intent to avoid or evade contribution limitations.
     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.
     Senator Chafin moved that the constitutional rule requiring a bill to be read on three separate days be suspended.
     The roll being taken, the yeas were: Bailey, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President)--27.
     The nays were: Barnes, Boley, Guills, Minear, Sprouse, Weeks and Yoder--7.
     Absent: None.
     So, less than four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule rejected.
     On motion of Senator Chafin, the Senate recessed until 2:30 p.m. today.
     Upon expiration of the recess, the Senate reconvened and proceeded to the sixth order of business, which agenda includes the making of main motions.
     On motion of Senator Chafin, the Senate requested the return from the House of Delegates of
     Eng. Senate Bill No. 4020, Relating to salaries of state officials.
     Having been reported from the Committee on Finance, read a second time, amended and ordered to engrossment and third reading in earlier proceedings today,
     The bill still being in the possession of the Senate,
     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, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White and Tomblin (Mr. President)--29.
     The nays were: Boley, Guills, Harrison, Weeks and Yoder--5.
     Absent: None.
     Engrossed Senate Bill No. 4020 was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President)--26.
     The nays were: Barnes, Boley, Caruth, Guills, Harrison, Sprouse, Weeks and Yoder--8.
     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. 4020) 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. 4020--A Bill to amend and reenact §6-7-2a of the Code of West Virginia, 1931, as amended; to amend and reenact §19-23-4 of said code; to amend and reenact §21A-4-5 of said code; and to amend and reenact §24-1-3 of said code, all relating generally to salaries of state officials and employees generally; subjecting certain state officials to a Senior Executive Service Salary Schedule; providing for salary adjustments for tenured or classified state employees who assume certain duties on an "acting" or "interim" basis; equalizing the salaries of certain board members; continuing the salaries of members of the Racing Commission and the Public Service Commission as fixed statutory amounts; and making technical revisions.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President)--26.
     The nays were: Barnes, Boley, Caruth, Guills, Harrison, Sprouse, Weeks and Yoder--8.
     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. 4020) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Without objection, the Senate returned to the third order of business.
     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. 401--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-3a; and to amend and reenact §11-15B-2 and §11- 15B-2a of said code, all relating generally to consumers sales and use taxes on food and food ingredients intended for human consumption; reducing rate of tax on sales, purchases and uses of food and food ingredients to five percent beginning on specified date; defining food and food ingredients and certain other terms; providing that lower rate does not apply to sales, purchases and uses of candy, dietary supplements or prepared food or to sales through vending machines; authorizing Tax Commissioner to promulgate emergency rules and to propose other rules for administration, enforcement and implementation of this act, whether interpretive, legislative or procedural; and specifying internal effective dates.
     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.
     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.
     The bill was then read a second time.
     On motion of Senator Sprouse, the following amendments to the bill (Eng. H. B. No. 401) were reported by the Clerk:
     On page two, section three-a, line three, after the word "contrary," by striking out the remainder of the subsection and inserting in lieu thereof the following: after the thirty-first day of December, two thousand five, there shall be no tax on sales, purchases and uses of food and food ingredients intended for human consumption.;
     On pages two and three, section three-a, lines eight through sixteen, by striking out all of subsection (b);
     And,
     By relettering the remaining subsections.
     Senator Helmick arose to a point of order that Senator Sprouse's amendments to the bill (Eng. H. B. No. 401) were out of order, in accordance with article VII, section seven of the Constitution which states in part ". . . the Legislature . . . shall enter upon no business except that stated in the proclamation by which it was called together."
     Which point of order, the President ruled well taken.
     Senator Sprouse then appealed the ruling of the Chair, and on this question, Senator Sprouse demanded the yeas and nays.
     Following discussion,
     The question being "Shall the Chair be sustained?"
     Prior to the call of the roll, Senator Tomblin (Mr. President) was excused from voting under rule number forty-three of the Rules of the Senate.
     On this question, the yeas were: Bailey, Bowman, Chafin, Dempsey, Edgell, Foster, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Prezioso, Sharpe, Unger and White--18.
     The nays were: Barnes, Boley, Caruth, Deem, Facemyer, Fanning, Guills, Harrison, Lanham, McKenzie, Minear, Sprouse, Weeks and Yoder--14.
     Absent: Plymale--1.
     Excused from voting: Tomblin (Mr. President)--1.
     So, a majority of those present and voting having voted in the affirmative, the President declared the Chair sustained.
     On motion of Senator Sprouse, the following amendment to the bill (Eng. H. B. No. 401) was next reported by the Clerk:
     On page two, section three-a, line seven, after the word "chapter" by changing the period to a colon and inserting the following proviso: Provided, That after the thirty-first day of March, two thousand six, the rate of tax on sales, purchases and uses of food and food ingredients intended for human consumption shall be reduced by one percent; that after the thirty-first day of May, two thousand six, the rate of tax on sales, purchases and uses of food and food ingredients intended for human consumption shall be reduced by one percent; that after the thirtieth day of July, two thousand six, the rate of tax on sales, purchases and uses of food and food ingredients intended for human consumption shall be reduced by one percent; that after the thirtieth day of September, two thousand six, the rate of tax on sales, purchases and uses of food and food ingredients intended for human consumption shall be reduced by one percent; and that after the thirty-first day of December, two thousand six, the rate of tax on sales, purchases and uses of food and food ingredients intended for human consumption shall be reduced by one percent.
     Senator Helmick arose to a point of order that Senator Sprouse's amendment to the bill (Eng. H. B. No. 401) was out of order, in accordance with article VII, section seven of the Constitution which states in part ". . . the Legislature . . . shall enter upon no business except that stated in the proclamation by which it was called together."
     Which point of order, the President ruled well taken.
     Senator Sprouse then appealed the ruling of the Chair.
     Following discussion,
     The question being "Shall the Chair be sustained?"
     The same was put and prevailed; and the ruling of the Chair was sustained.
     Thereafter, at the request of Senator Caruth, unanimous consent being granted, the remarks by Senator Barnes as to Senator Sprouse's appealing the ruling of the Chair on the point of order raised by Senator Helmick as to Senator Sprouse's foregoing amendment to Engrossed House Bill No. 401 were ordered printed in the Appendix to the Journal.
     At the request of Senator McKenzie, and by unanimous consent, the remarks by Senator Sprouse as to Senator Sprouse's appealing the rulings of the Chair on the points of order raised by Senator Helmick as to Senator Sprouse's amendments to Engrossed House Bill No. 401 were ordered printed in the Appendix to the Journal.
     There being no further amendments offered,
     The bill was ordered to third reading.
     Having been engrossed, the bill (Eng. H. B. No. 401) was then read a third time and put upon its passage.
     Pending discussion,
     The question being "Shall Engrossed House Bill No. 401 pass?"
     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, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
     The nays were: Weeks--1.
     Absent: Plymale--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 401) 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, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
     The nays were: Weeks--1.
     Absent: Plymale--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 401) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     In accordance with rule number forty-four of the Rules of the Senate, Senator Weeks will file a written vote explanation as to the passage of Engrossed House Bill No. 401, which vote explanation will be printed in the Appendix to the Journal.
     At the request of Senator Caruth, and by unanimous consent, the remarks by Senator Harrison as to the passage of Engrossed House Bill No. 401 were ordered printed in the Appendix to the Journal.
     The Senate again proceeded to the ninth order of business.
     The end of today's second reading calendar having been reached, the Senate returned to the consideration of
     Senate Bill No. 4007, Relating generally to consumers sales and use taxes on food.
     On second reading, coming up in deferred order, was reported by the Clerk.
     On motion of Senator Chafin, the bill was recommitted to the Committee on Finance.
     On motion of Senator Chafin, the Senate recessed for five minutes.
     Upon expiration of the recess, the Senate reconvened and, at the request of Senator Sprouse, unanimous consent being granted, returned to the sixth order of business, which agenda includes the making of main motions.
     On motion of Senator Sprouse, the Senate reconsidered the vote by which in earlier proceedings today it rejected Senator Chafin's motion to suspend the constitutional rule requiring a bill to be read on three separate days, as to
     Eng. Com. Sub. for House Bill No. 402, Requiring the disclosure of electioneering communications and prohibiting political organizations from accepting contributions in excess of one thousand dollars per election.
     The vote thereon having been reconsidered,
     The question again being on the adoption of Senator Chafin's motion to suspend the constitutional rule requiring a bill to be read on three separate days.
     The roll being taken, 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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule adopted.
     The bill (Eng. Com. Sub. for H. B. No. 402) was then read a second time.
     On motion of Senator Kessler, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
      On page sixteen, section two, line forty-nine, by striking out the word "campaign-related";
     On page sixteen, section two, line fifty, after the word "receipts" by inserting the words "related to such expenditure";
     On page sixteen, section two, line fifty-five, by striking out the word "subsection" and inserting in lieu thereof the word "section";
     On page eighteen, section two-b, line twenty-two, by striking out the word "address" and inserting in lieu thereof the word "addresses";
     On page forty-eight, section twelve, line fifty-six, by striking out the words "or national elective";
     On page forty-nine, section twelve, line sixty-eight, after the word "organization" by inserting the words "(as defined in Section 527(e)(1) of the Internal Revenue Code of 1986)";
     On page forty-nine, section twelve, line seventy-seven, by striking out the word "the" and inserting in lieu thereof the word "this";
     And,
     On page fifty-two, section twelve, line one hundred thirty- five, after the word "(g)" by inserting the word "of".
      On motion of Senator Kessler, the following amendments to the bill (Eng. Com. Sub. for S. B. No. 402) were next reported by the Clerk, considered simultaneously, and adopted:
      On page fifty-two, section twelve, after line one hundred thirty-three, by inserting a new subsection, designated subsection (o), to read as follows:
     (o) The provisions of subsection (k) of this section, permitting contributions to a campaign for or against a county or local government ballot issue, shall become operable on and after the first day of January, two thousand five.;
     On page fifty-two, section twelve, line one hundred thirty- four, by striking out "(o)" and inserting in lieu thereof "(p)";
     And,
     On page fifty-two, after section twelve, by adding a new section, designated section fourteen, to read as follows:
§3-8-14. Effective date of certain criminal offenses.
     The criminal offenses created in sections two and twelve of this article by the provisions of Enrolled Committee Substitute for House Bill No. 402 during the fourth extraordinary session, two thousand five, shall be effective ninety days from passage.
      On motion of Senator Kessler, the following amendment to the bill (Eng. Com. Sub. for H. B. No. 402) was next reported by the Clerk and adopted:
      On pages two and three, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That §3-8-5c of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto three new sections, designated §3-8-1a, §3-8-2b and §3-8-14; and that §3-8-2, §3-8-4, §3-8-5a, §3-8-7, §3-8-8 and §3-8-12 of said code be amended and reenacted, all to read as follows:.
      The bill, as amended, was ordered to third reading.
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 402) 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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 402) passed.
     On motion of Senator Kessler, 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. Com. Sub. for House Bill No. 402--A Bill to repeal §3-8- 5c of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto three new sections, designated §3-8-1a, §3- 8-2b and §3-8-14; and to amend and reenact §3-8-2, §3-8-4, §3-8-5a, §3-8-7, §3-8-8 and §3-8-12 of said code, all relating to regulating elections; defining terms; requiring candidates and persons making electioneering communications to keep and make available for inspection records of campaign-related contributions and spending; requiring persons who engage in electioneering communications to file financial statements with Secretary of State; contents of statement and filing requirements; penalties for filing delinquent or incomplete financial statements; granting the Secretary of State legislative and emergency rule-making authority; clarifying that electioneering communications made in coordination with a candidate or political party are considered contributions to such candidate or political party; increasing penalty for violations of prohibitions on corporate contributions to candidates or for electioneering communications; requiring political organizations to register with the Secretary of State prior to soliciting or accepting contributions; prohibiting political organizations from accepting contributions in excess of one thousand dollars before the primary and general elections; making it unlawful to create more than one political organization with the intent to avoid or evade contribution limitations; and establishing an internal operating date.
      Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     On motion of Senator Sprouse, the Senate reconsidered the vote by which in earlier proceedings today it rejected Senator Chafin's motion to suspend the constitutional rule requiring a bill to be read on three separate days, as to
     Eng. Com. Sub. for House Bill No. 411, Relating to amending certain provisions of the code involving horse and dog racing and distribution of certain proceeds.
     The vote thereon having been reconsidered,
     The question again being on the adoption of Senator Chafin's motion to suspend the constitutional rule requiring a bill to be read on three separate days.
     The roll being taken, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
     The nays were: Harrison--1.
     Absent: Plymale--1.
     So, four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule adopted.
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 411) was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--30.
     The nays were: Barnes, Boley and Harrison--3.
     Absent: Plymale--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 411) passed.
     On motion of Senator Chafin, the following amendment to the title of the bill was reported by the Clerk and adopted:
      On pages one through five, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for House Bill No. 411--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, 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 this 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 each fiscal year from the purse funds to the workers' compensation debt.
      Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--30.
     The nays were: Barnes, Boley and Harrison--3.
     Absent: Plymale--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 411) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Without objection, the Senate returned to the third order of business.
     A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     Eng. Com. Sub. for House Bill No. 413, Providing an increase in the annual base salary of all sworn state police personnel.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     Senator Chafin then moved that the Senate accede to the request of the House of Delegates and recede from its amendments to the bill.
     The question being on the adoption of Senator Chafin's aforestated motion, and on this question, Senator Weeks demanded the yeas and nays.
     The roll being taken, the yeas were: Bailey, Bowman, Chafin, Deem, Dempsey, Edgell, Fanning, Helmick, Hunter, Kessler, Love, McCabe, Minard, Oliverio, Prezioso, Sharpe, White and Tomblin (Mr. President)--18.
     The nays were: Barnes, Boley, Caruth, Facemyer, Foster, Guills, Harrison, Jenkins, Lanham, McKenzie, Minear, Sprouse, Unger, Weeks and Yoder--15.
     Absent: Plymale--1.
     So, a majority of those present and voting having voted in the affirmative, the President declared Senator Chafin's aforestated motion had prevailed.
     Engrossed Committee Substitute for House Bill No. 413, as amended by deletion, 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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 413) passed with its title.
     Senator Chafin moved that the bill take effect November 1, 2005.
     On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 413) takes effect November 1, 2005.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Executive Communications

      The following communication from His Excellency, the Governor, was reported by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

September 12, 2005

Senate Executive Message No. 3
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
     The following amends and replaces the "FY 2006 Official Estimate" "General Revenue Fund - Statement of Revenues by Source" which I submitted to you on June 30, 2005, for the fiscal year ending June 30, 2006:
General Revenue Fund

Statement of Revenues by Source

(Expressed in Thousands)

  FY 2006
  Official
Source of Revenue        Estimate
Business and Occupation Tax                                  $        178,000
Consumers Sales Tax                                                  972,300
Personal Income Tax                                                  1,152,500
Liquor Profit Transfers                                              9,100
Racing Fees                                                          3,000
Beer Tax and Licenses                                                8,400
Cigarette Tax                                                        95,500
Estate Tax                                                           200
Business Franchise Fees                                              1,800
Charter Tax                                                          5,600
Use Tax                                                              96,500
Property Transfer Tax                                                10,900
Property Tax                                                         4,400
Insurance Tax                                                        103,000
Departmental Collections                                             15,100
Corporate Income/Business Franchise Tax                              244,500
Miscellaneous Transfers                                              500
Interest Income                                                      13,000
Severance Tax                                                        278,000        1
Telecommunication Tax                                                6,000
Miscellaneous Receipts                                               1,000
Smokeless Tobacco Tax                                                4,700
HB102 - Lottery Transfers                                            77,900
Senior Citizen Tax Credit Reimbursement                      ________ 5,000
  Total                                                      ________$3,286,900  2
 1 Revised from   $       248,000   to   $  278,000 -  Increase of   $        30,000.
2 Revised from          3,256,900   to     3,286,900 -  Increase of           30,000.
      The purpose of this Executive Message is to adjust the revenue estimate upward, reflecting a stronger than anticipated economy in the Severance Tax area due to higher than anticipated energy prices.
                              Sincerely,
                               Joe Manchin III,
                               Governor.
      In compliance with Article VI, Section 51 of the Constitution, the Senate consented to receive the foregoing amendments to the Budget Bill, which were referred to the Committee on Finance.
      Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, consisting of an executive nomination for appointee:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

September 12, 2005

Senate Executive Message No. 4
TO:  The Honorable Members of the
     West Virginia Senate
Ladies and Gentlemen:
     I respectfully submit the following nomination for your advice and consent:
     1.   For Member, Pharmaceutical Cost Management Council, J. J. Bernabei, Weirton, Hancock County, for the term ending June 30, 2007.
     Notice of this appointment was previously provided to the appropriate legislative staff at the time the appointment was made.
                              Sincerely,
                               Joe Manchin III,
                               Governor.
     Which communication was received and referred to the Committee on Confirmations.
     On motion of Senator Love, consideration of the nomination immediately hereinbefore reported was made a special order of business following an anticipated recess.
     Pending announcement of a meeting of a standing committee of the Senate,
     On motion of Senator Chafin, the Senate recessed for ten minutes.
     Upon expiration of the recess, the Senate reconvened and again proceeded to the fourth order of business.
     Senator Love, from the Committee on Confirmations, submitted the following report, which was received:
     Your Committee on Confirmations has had under consideration
     Senate Executive Message No. 4, dated September 12, 2005, requesting confirmation by the Senate of the nomination mentioned therein. The following name from Executive Message No. 4 is submitted:
      1. For Member, Pharmaceutical Cost Management Council, J. J. Bernabei, Weirton, Hancock County, for the term ending June 30, 2007.
     And reports the same back with the recommendation that the Senate do advise and consent to the nomination listed above.
     
Respectfully submitted,

     
Shirley Love,

     
Chair.
__________

     The time having arrived for the special order of business to consider the nominee for public office submitted by His Excellency, the Governor, the special order thereon was called by the President.
     Thereupon, Senator Tomblin (Mr. President) laid before the Senate the following executive message:
     Senate Executive Message No. 4, dated September 12, 2005 (shown in the Senate Journal of today, pages 91 and 92).
     Senator Love then moved that the Senate advise and consent to the executive nomination referred to in the foregoing report from the Committee on Confirmations.
     The question being on the adoption of Senator Love's aforestated motion,
     The roll was then taken; and
     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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
      So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared Senator Love's aforestated motion had prevailed.
__________

     Consideration of the executive nomination having been concluded,
      The Senate again proceeded to the sixth order of business, which agenda includes the making of main motions.
     On motion of Senator Chafin, the Senate requested the return from the House of Delegates of
     Eng. House Bill No. 401, Reducing the six percent sales tax on food and food ingredients intended for human consumption to five percent beginning January 1, 2006.
     Passed by the Senate in prior proceedings today,
     The bill still being in the possession of the Senate,
     On motion of Senator Chafin, the Senate reconsidered the vote by which it adopted Senator Chafin's motion that Engrossed House Bill No. 401 take effect from passage.
     The vote thereon having been reconsidered,
     The question again being on the adoption of Senator Chafin's motion that Engrossed House Bill No. 401 take effect from passage.
     Thereafter, at the request of Senator Chafin, and by unanimous consent, his aforestated motion was withdrawn.
     On motion of Senator Helmick, the following amendment to the title of the bill was reported by the Clerk and adopted:
      On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. House Bill No. 401--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-3a; and to amend and reenact §11-15B-2 and §11- 15B-2a of said code, all relating generally to consumers sales and use taxes on food and food ingredients intended for human consumption; reducing rate of tax on sales, purchases and uses of food and food ingredients to five percent beginning on specified date; defining food and food ingredients and certain other terms; providing that lower rate does not apply to sales, purchases and uses of prepared food; authorizing legislative and emergency rules; and specifying internal effective dates.
      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, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
     The nays were: Weeks--1.
     Absent: Plymale--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 401) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     On motion of Senator Kessler, the Senate requested the return from the House of Delegates of
     Eng. Com. Sub. for House Bill No. 402, Requiring the disclosure of electioneering communications and prohibiting political organizations from accepting contributions in excess of one thousand dollars per election.
     Passed by the Senate in earlier proceedings today,
     The bill still being in the possession of the Senate,
     On motion of Senator Kessler, the Senate reconsidered its action by which in prior proceedings today it adopted Senator Kessler's amendment to the title of bill.
     The vote thereon having been reconsidered,
     The question again being on the adoption of Senator Kessler's amendment to the title of the bill.
     Thereafter, at the request of Senator Kessler, unanimous consent being granted, Senator Kessler's amendment to the title of the bill (shown in the Senate Journal of today, pages 81 and 82) was withdrawn.
     On motion of Senator Kessler, the Senate reconsidered the vote as to the passage of the bill.
     The vote thereon having been reconsidered,
     On further motion of Senator Kessler, the Senate reconsidered its action by which in earlier proceedings today it adopted Senator Kessler's amendments to the bill (shown in the Senate Journal of today, pages 79 and 80)
     The vote thereon having been reconsidered,
     The question again being on the adoption of Senator Kessler's amendments to the bill (Eng. Com. Sub. for H. B. No. 402).
     Senator Kessler requested unanimous consent that his amendments to the bill be withdrawn.
     Which consent was not granted, Senator Deem objecting.
     Thereafter, on motion of Senator Kessler, his amendments to the bill were withdrawn.
     On motion of Senator Kessler, the following substitute amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
      On pages fifty and fifty-one, section twelve, line ninety- eight through one hundred seven, by striking out all of subsection (k) and inserting in lieu thereof a new subsection (k), to read as follows:  
     (k) No person may solicit any contribution, other than contributions to a campaign for or against a county or local government ballot issue, from any nonelective salaried employee of the state government or of any of its subdivisions: Provided, That in no event shall any person acting in a supervisory role solicit a person who is a subordinate employee for any contribution. No person may coerce or intimidate any nonelective salaried employee into making a contribution. No person may coerce or intimidate any nonsalaried employee of the state government or any of its subdivisions into engaging in any form of political activity. The provisions of this subsection may not be construed to prevent any employee from making a contribution or from engaging in political activity voluntarily without coercion, intimidation or solicitation.;
     On page fifty-two, section twelve, after line one hundred thirty-three, by inserting a new subsection, designated subsection (o), to read as follows:
     (o) The provisions of subsection (k) of this section, permitting contributions to a campaign for or against a county or local government ballot issue shall become operable on and after the first day of January, two thousand five.;
     On page fifty-two, section twelve, line one hundred thirty- four, by striking out "(o)" and inserting in lieu thereof "(p)";
     And,
     On page fifty-two, after section twelve, by adding a new section, designated section fourteen, to read as follows:
§3-8-14. Effective date of certain criminal offenses.
     The criminal offenses created in sections two, seven and twelve of this article by the provisions of Enrolled Committee Substitute for House Bill No. 402 during the fourth extraordinary session, two thousand five, shall be effective ninety days from passage.
      On further motion of Senator Kessler, the Senate reconsidered its action by which in earlier proceedings today it adopted Senator Kessler's amendment to the enacting section of the bill (shown in the Senate Journal of today, page 80)
     The vote thereon having been reconsidered,
     The question again being on the adoption of Senator Kessler's amendment to the enacting section of the bill (Eng. Com. Sub. for H. B. No. 402).
     Thereafter, at the request of Senator Kessler, and by unanimous consent, Senator Kessler's amendment to the enacting section of the bill was withdrawn.
     On motion of Senator Kessler, the following substitute amendment to the enacting section of the bill was reported by the Clerk and adopted:
      On pages two and three, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That §3-8-5c of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto three new sections, designated §3-8-1a, §3-8-2b and §3-8-14; and that §3-8-2, §3-8-4, §3-8-5a, §3-8-7, §3-8-8 and §3-8-12 of said code be amended and reenacted, all to read as follows:.
      The bill (Eng. Com. Sub. for H. B. No. 402), as just amended, was again ordered to third reading.
     Having been engrossed, the bill 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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 402) passed.
     On motion of Senator Kessler, 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. Com. Sub. for House Bill No. 402--A Bill to repeal §3-8- 5c of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto three new sections, designated §3-8-1a, §3- 8-2b and §3-8-14; and to amend and reenact §3-8-2, §3-8-4, §3-8-5a, §3-8-7, §3-8-8 and §3-8-12 of said code, all relating to regulating elections; defining terms; requiring candidates and persons making electioneering communications to keep and make available for inspection records of campaign-related contributions and spending; requiring persons who engage in electioneering communications to file financial statements with Secretary of State; contents of statement and filing requirements; penalties for filing delinquent or incomplete financial statements; granting the Secretary of State legislative and emergency rule-making authority; clarifying that electioneering communications made in coordination with a candidate or political party are considered contributions to such candidate or political party; increasing penalty for violations of prohibitions on corporate contributions to candidates or for electioneering communications; requiring political organizations to register with the Secretary of State prior to soliciting or accepting contributions; prohibiting political organizations from accepting contributions in excess of one thousand dollars before the primary and general elections; making it unlawful to create more than one political organization with the intent to avoid or evade contribution limitations; and establishing an internal operating date.
      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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 402) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Without objection, the Senate returned to the third order of business.
      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. 420--A Bill expiring funds to the unappropriated surplus balance in the State Fund, General Revenue, for the fiscal year ending the thirtieth day of June, two thousand six, in the amount of three million dollars from the Tax Reduction and Federal Funding Increased Compliance Fund, fund 1732, fiscal year 2006, organization 2300, in the amount of five million dollars from the Tax Reduction and Federal Funding Increased Compliance Lottery Fund, fund 1735, fiscal year 2003, organization 2300, in the amount of thirteen million dollars from the Special Income Tax Refund Reserve Fund, fund 1313, fiscal year 2006, organization 1300, in the amount of four million dollars from the Joint Expenses, fund 0175, fiscal year 2005, organization 2300, activity 642, and in the amount of three million dollars from the Joint Expenses, fund 0175, fiscal year 2004, organization 2300, activity 642, and making a supplementary appropriation of public moneys out of the Treasury from the unappropriated surplus balance for the fiscal year ending the thirtieth day of June, two thousand six, to the Department of Administration - Consolidated Public Retirement Board, fund 0195, fiscal year 2006, organization 0205.
     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.
      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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     The bill was read a second time and ordered to third reading.
     Having been engrossed, the bill (Eng. H. B. No. 420) 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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 420) 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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 420) 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. 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 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.
      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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     The bill was read a second time and ordered to third reading.
     Having been engrossed, the bill (Eng. H. B. No. 422) 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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 422) 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, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 422) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     The Senate again proceeded to the sixth order of business.
     Senators Unger, McCabe, Dempsey, Plymale, Hunter, Bowman, Kessler, Bailey, Barnes, Boley, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Jenkins, Lanham, Love, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Weeks, White, Yoder and Tomblin (Mr. President ) offered the following resolution:
     Senate Resolution No. 403--Extending heartfelt compassion to the people of Alabama, Louisiana and Mississippi and commending them for their resilience following the devastation caused by Hurricane Katrina.
     Whereas, On August 29, 2005, Hurricane Katrina slammed into the Gulf states of Alabama, Louisiana and Mississippi, causing catastrophic devastation; and
     Whereas, The city of New Orleans, Louisiana, is virtually uninhabitable due to massive flooding; and
     Whereas, American citizens have found themselves homeless and jobless, many of whom were evacuated to areas far from their homes with the clothing they were wearing as their only possessions; and
     Whereas, The toll of human suffering is ongoing for hundreds of thousands of people; and
     Whereas, The cost of rebuilding cities and towns affected by Hurricane Katrina along the Gulf Coast will be astronomical; and
     Whereas, Hundreds of thousands of displaced Americans have been welcomed to shelters established in numerous states, including the State of West Virginia; and
     Whereas, West Virginians, in true Mountaineer spirit, have demonstrated their care and compassion to the relief and recovery efforts by contributing large amounts of monetary and humanitarian donations; and
     Whereas, The people of Alabama, Louisiana and Mississippi are to be commended for their resilience in the face of such destruction. The courage and commitment of these citizens show the determination for survival in the face of devastation; and
     Whereas, It is our duty as fellow Americans to support the massive efforts being undertaken by federal, state and local governments, as well as the various charitable organizations that are committed to the relief and recovery efforts; therefore, be it
     Resolved by the Senate:
     That the Senate hereby extends its heartfelt compassion to the people of Alabama, Louisiana and Mississippi and commends them for their resilience following the devastation caused by Hurricane Katrina; and, be it
     Further Resolved, That the Senate extends its appreciation to the various charitable organizations that have worked so diligently to assist those affected by the catastrophic circumstances caused by Hurricane Katrina; and, be it
     Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the governors of the states of Alabama, Louisiana and Mississippi.
     At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     At the request of Senator Boley, and by unanimous consent, Senator Boley addressed the Senate regarding a quote relating to legislative pay raises in the Charleston Gazette that was wrongly attributed to Senator Boley.
     Thereafter, at the request of Senator Sprouse, unanimous consent being granted, the remarks by Senator Boley were ordered printed in the Appendix to the Journal.
     The Senate proceeded to the thirteenth order of business.
     Senator Kessler called attention to yesterday, Monday, September 12, 2005, being the birthday of the senator from Cabell and on behalf of the Senate extended belated felicitations and good wishes to Senator Jenkins, with Senator Sharpe leading the members in singing "Happy Birthday".
     On motion of Senator Chafin, the Senate recessed for ten minutes.
     Upon expiration of the recess, the Senate reconvened and, without objection, returned to the third order of business.
     A message from the Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to the House of Delegates amendments to, and the passage as amended, to take effect from passage, of
     Eng. Senate Bill No. 4006, Relating to accountability of persons receiving state funds or grants.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
     Eng. Senate Bill No. 4008, Relating to salaries for teachers and school service personnel.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in part to the Senate amendments, as amended by the House of Delegates, passage as amended with its Senate amended title, to take effect from passage, and announced that that body had refused to concur in part to the Senate amendments to the bill and requested the Senate to recede therefrom, as to
     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 motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the Senate amendments to the bill was reported by the Clerk:
     On page three, section one, line thirty-four, by striking out the words "(13), (14) and (15)" and inserting in lieu thereof the words "(12), (13) and (14)".
     On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendments to the bill.
     The Clerk then reported that the House of Delegates had refused to concur in the following amendments to the bill and requested the Senate to recede therefrom:
     On 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 Chafin, the Senate acceded to the request of the House of Delegates and receded from the foregoing amendments to the bill.
     Engrossed House Bill No. 406, as amended, was then put upon its passage.
     Pending discussion,
     The question being "Shall Engrossed House Bill No. 406 pass?"
     On the passage of the bill, the yeas were: Bailey, Bowman, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Oliverio, Prezioso, Sharpe, White and Tomblin (Mr. President)--21.
     The nays were: Barnes, Boley, Caruth, Guills, Harrison, McKenzie, Minear, Sprouse, Unger, Weeks and Yoder--11.
     Absent: Deem and Plymale--2.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 406) passed with its Senate amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Bowman, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Oliverio, Prezioso, Sharpe, Unger, White, Yoder and Tomblin (Mr. President)--23.
     The nays were: Barnes, Boley, Caruth, Guills, Harrison, McKenzie, Minear, Sprouse and Weeks--9.
     Absent: Deem and Plymale--2.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 406) takes effect from passage.
     Ordered, That the Clerk communicate to the House of Delegates the action of the Senate.
     Thereafter, at the request of Senator Weeks, and by unanimous consent, the remarks by Senator Caruth as to the passage of Engrossed House Bill No. 406 were ordered printed in the Appendix to the Journal.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect from passage, of
     Eng. House Bill No. 407, Providing that department secretaries may transfer employees between departments in certain instances.
     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. Com. Sub. for House Bill No. 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.
     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.
     Senator Chafin moved that the constitutional rule requiring a bill to be read on three separate days be suspended.
     Following discussion,
     Senator Chafin then arose to the point of order that the motion to suspend the constitutional rule is not a debatable motion.
     Which point of order, the President ruled well taken.
     The question being on the adoption of Senator Chafin's motion that the constitutional rule requiring a bill to be read on three separate days be suspended.
     Thereafter, at the request of Senator Chafin, and by unanimous consent, his foregoing motion was withdrawn.
     At the request of Senator Helmick, unanimous consent being granted, Senator Helmick addressed the Senate regarding the appropriations contained in Engrossed Committee Substitute for House Bill No. 417.
     At the request of Senator Sprouse, and by unanimous consent, Senator Sprouse addressed the Senate regarding Engrossed Committee Substitute for House Bill No. 417 and the Democratic party reaction to tax reduction proposals during this extraordinary session.
     Senator Chafin then moved that the constitutional rule requiring a bill to be read on three separate days be suspended.
     The roll being taken, the yeas were: Bailey, Boley, Bowman, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Unger, White and Tomblin (Mr. President)--25.
     The nays were: Barnes, Caruth, Guills, Harrison, Sprouse, Weeks and Yoder--7.
     Absent: Deem and Plymale--2.
     So, less than four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule rejected.
     At the request of Senator Chafin, unanimous consent being granted, Senator Chafin addressed the Senate regarding his support of previous legislation providing funding for certain projects.
     At the request of Senator Jenkins, and by unanimous consent, Senator Jenkins addressed the Senate regarding possible consequences for failure to suspend the constitutional rule on Engrossed Committee Substitute for House Bill No. 417.
     At the request of Senator Hunter, unanimous consent being granted, Senator Hunter addressed the Senate regarding the impact on certain citizens if Engrossed Committee Substitute for House Bill No. 417 does not pass the Legislature.
     At the request of Senator Guills, and by unanimous consent, Senator Guills addressed the Senate regarding the unanticipated receipt of Engrossed Committee Substitute for House Bill No. 417 and the ready disposition of the message.
     Thereafter, on motion of Senator Yoder, the Senate reconsidered the vote by which in earlier proceedings today it rejected Senator Chafin's motion to suspend the constitutional rule requiring a bill to be read on three separate days, as to
     Eng. Com. Sub. for House Bill No. 417, Making a supplementary appropriation to the West Virginia Conservation Agency, to the Department of Health and Human Resources, Division of Human Services, ....etc.
     The vote thereon having been reconsidered,
     The question again being on the adoption of Senator Chafin's motion to suspend the constitutional rule requiring a bill to be read on three separate days.
     The roll being taken, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
     The nays were: None.
     Absent: Deem and Plymale--2.
     So, four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule adopted.
     The bill was read a second time and ordered to third reading.
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 417) was then read a third time and put upon its passage.
     Pending discussion,
     The question being "Shall Engrossed Committee Substitute for House Bill No. 417 pass?"
     On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
     The nays were: None.
     Absent: Deem and Plymale--2.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 417) 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, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
     The nays were: None.
     Absent: Deem and Plymale--2.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 417) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Chafin offered the following pre-adjournment resolution:
     Senate Resolution No. 404--Raising a committee to notify the House of Delegates the Senate is ready to adjourn sine die.
     Resolved by the Senate:
     That the President be authorized to appoint a committee of three to notify the House of Delegates that the Senate has completed its labors and is ready to adjourn sine die.
     At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Senator Tomblin (Mr. President), under the provisions of the foregoing resolution, appointed the following committee to notify the House of Delegates of impending Senate adjournment:
     Senators Jenkins, White and Minear.
     Subsequently, Senator Jenkins reported that the duties assigned by Senate Resolution No. 404 had been performed.
     Thereafter, a three-member delegation from the House of Delegates, namely
     Delegates Hunt, Williams and Frich, announced that that body also had completed its labors and was ready to adjourn sine die.
     Senator Chafin then offered the following resolution:
     Senate Resolution No. 405--Raising a committee to notify His Excellency, the Governor, that the Legislature is ready to adjourn sine die.
     Resolved by the Senate:
     That the President be authorized to appoint a committee of three to join with a similar committee of the House of Delegates to notify His Excellency, the Governor, that the Legislature has completed its labors and is ready to adjourn sine die.
     At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Under the provisions of the foregoing resolution, Senator Tomblin (Mr. President) appointed the following committee to notify His Excellency, the Governor, that the Senate was ready to adjourn:
     Senators Sharpe, Fanning and Boley.
     Delegates Hrutkay, Manchin and Carmichael, then announced that they had been appointed by that body to join with the similar committee named by the Senate to wait upon His Excellency and were ready to proceed with this assignment.
     Senators Sharpe, Fanning and Boley, comprising the Senate committee, then joined the House committee and proceeded to the executive offices to notify His Excellency, the Governor, of imminent adjournment of this extraordinary session of the Legislature.
     Subsequently, Senator Sharpe, from the joint select committee to notify His Excellency, the Governor, that the Legislature had completed the business of this extraordinary session and was ready to adjourn sine die, returned to the chamber and was recognized by the President. Senator Sharpe then reported this mission accomplished.
     At the request of Senator White, unanimous consent being granted, the Joint Committee on Enrolled Bills was granted permission, after it has examined, found truly enrolled and presented to His Excellency, the Governor, for his action, bills passed but not presented to him prior to adjournment of this fourth extraordinary session of the seventy-seventh Legislature in the year two thousand five, to file its reports with the Clerk and that the same be included in the Journal of the last day of the session; and also, that any communications from His Excellency, the Governor, as to his action on bills after adjournment of the session, be included in the Journal.
     In accordance with the foregoing unanimous consent agreement, the following report of the Joint Committee on Enrolled Bills was filed as follows:
     Senator White, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
     Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 16th day of September, 2005, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
     (S. B. No. 4002), Allowing additional elections at primary elections; removing certain language.
     (S. B. No. 4006), Relating to accountability of persons receiving state funds or grants.
     (S. B. No. 4008), Relating to salaries for teachers and school service personnel.
     (S. B. No. 4010), Relating to proposed merger of Teachers' Defined Contribution Retirement System with State Teachers Retirement System.
     (S. B. No. 4014), Making supplementary appropriation to Lottery Commission, Excess Lottery Revenue Fund Surplus.
     (S. B. No. 4015), Supplementing, amending, reducing and increasing items of existing appropriation from Department of Agriculture, Agriculture Fees Fund.
     (S. B. No. 4016), Making supplementary appropriation to Department of Agriculture, Agricultural Land Protection Authority.
     (S. B. No. 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.
     (H. B. No. 401), Reducing the six percent sales tax on food and food ingredients intended for human consumption to five percent beginning January 1, 2006.
     (Com. Sub. for H. B. No. 402), Requiring the disclosure of electioneering communications and prohibiting political organizations from accepting contributions in excess of one thousand dollars per election.
     (H. B. No. 403), Providing for a technical correction relating to benefits of spouses and children of state troopers who die in the line of duty.
     (H. B. No. 405), Changing West Virginia's Unemployment Compensation law to conform it to federally mandated legislation.
     (H. B. 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.
     (H. B. No. 407), Providing that department secretaries may transfer employees between departments in certain instances.
     (Com. Sub. for H. B. No. 411), Relating to amending certain provisions of the code involving horse and dog racing and distribution of certain proceeds.
     (Com. Sub. for H. B. No. 412), Relating generally to Workers' Compensation.
     (Com. Sub. for H. B. No. 413), Providing an increase in the annual base salary of all sworn state police personnel.
     (Com. Sub. for H. B. No. 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. No. 417), Making a supplementary appropriation to the West Virginia Conservation Agency, to the Department of Health and Human Resources, Division of Human Services, ....etc.
     (H. B. No. 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,
     (H. B. No. 422), Supplemental appropriation to the Department of Administration, Consolidated Public Retirement Board.
                              Respectfully submitted,
                               C. Randy White,
                               Chair, Senate Committee.
                               Richard Browning,
                               Chair, House Committee.
Executive Communications

     Under authorization of Senate approval therefor in prior proceedings today, to include in this day's Journal communications showing the Governor's action on enrolled bills presented to him in post-session reports, the following are inserted hereinafter: