(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

REGULAR SESSION, 2005

FIFTY-EIGHTH DAY

____________

Charleston, W. Va., Thursday, April 7, 2005

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

Prayer was offered by the Reverend Teddy Tackett, Lynn Street Church of Christ, Parkersburg, West Virginia.
Pending the reading of the Journal of Wednesday, April 6, 2005,
On motion of Senator Guills, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Senate Bill No. 104, Repealing section of code relating to working prisoners by county commissions.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect July 1, 2005, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 253, Permitting Insurance Commissioner waive or reduce penalty for late filing of tax returns.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, section seven, lines seven and eight, by striking out the words "or otherwise does not warrant the imposition of the maximum allowable penalty".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 253, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: 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 and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Yoder--2.
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. 253) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: 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 and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Yoder--2.
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. 253) takes effect July 1, 2005.
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 amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 256, Requiring insurance companies inform policyholders if flood damage not covered.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the bill was reported by the Clerk:
On page one, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 256--A Bill to repeal §33-22-2a of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §33-17-6a; and to amend and reenact §33-22-2 of said code, all relating to flood insurance; requiring that certain insurance documents include a notice regarding the absence of flood insurance and the possible availability of flood insurance from other sources; requiring that farmer's mutual insurance companies include the notice; and making technical corrections to citations.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 256, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Yoder--1.

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. 256) passed with its House of Delegates amended title.
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 amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 459, Relating to reinsurance and insolvency liability.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 4. GENERAL PROVISIONS.
§33-4-15. Reinsurance.
(a) For purposes of this section, an "assumption reinsurance agreement" means any contract which:
(1) Transfers insurance obligations and/or risks of existing or in-force contracts of insurance from a transferring insurer to an assuming insurer; and
(2) Is intended to effect a novation of the transferred contract of insurance with the result that the assuming insurer becomes directly liable to the policyholders of the transferring insurer and the transferring insurer's insurance obligations and/or risks under the contracts are extinguished.
(b) An insurer shall reinsure its risks, or any part thereof, only in solvent insurers complying with the capital and surplus requirements of section five-b, article three of this chapter.
(c) Credit for reinsurance shall be governed by the provisions of sections fifteen-a and fifteen-b of this article. Credit shall not be allowed unless the reinsurance is payable by the assuming insurer on the basis of the liability of the ceding insurer under the contracts reinsured without diminution because of the insolvency of the ceding insurer nor unless under the reinsurance contract the liability for the reinsurance is assumed by the assuming insurer or insurers as of the same effective date.
(1) No credit shall be allowed, as an admitted asset or deduction from liability, to any ceding insurer for reinsurance, unless the reinsurance contract provides, in substance, that in the event of the insolvency of the ceding insurer, the reinsurance shall be payable under a contract reinsured by the assuming insurer on the basis of reported claims allowed by the liquidation court, without diminution because of the insolvency of the ceding insurer. Payments shall be made directly to the ceding insurer or to its domiciliary liquidator except: (A) where the contract or other written agreement specifically provides another payee of the reinsurance in the event of the insolvency of the ceding insurer; or (B) where the assuming insurer, with the consent of the direct insured, has assumed the policy obligations of the ceding insurer as direct obligations of the assuming insurer to the payees under the policies and in substitution for the obligations of the ceding insurer to payees.
(2) The reinsurance agreement may provide that the domiciliary liquidator of an insolvent ceding insurer shall give written notice to the assuming insurer of the pendency of a claim against the ceding insurer on the contract reinsured within a reasonable time after the claim is filed in the liquidation proceeding. During the pendency of the claim, any assuming insurer may investigate the claim and interpose, at its own expense, in the proceeding where the claim is to be adjudicated any defenses which it deems available to the ceding insurer or its liquidator. The expense may be filed as a claim against the insolvent ceding insurer to the extent of a proportionate share of the benefit which may accrue to the ceding insurer solely as a result of the defense undertaken by the assuming insurer. Where two or more assuming insurers are involved in the same claim and a majority in interest elect to interpose a defense to the claim, the expense shall be apportioned in accordance with the terms of the reinsurance agreement as though the expense had been incurred by the ceding insurer.
(d) Any licensed insurer may accept reinsurance for the same kinds of insurance and within the same limits as it is authorized to transact direct insurance.
(e) A licensed insurer may reinsure all or substantially all of its risks on property or lives located in West Virginia, or substantially all of a major class thereof, with another insurer by an assumption reinsurance agreement: Provided, That the assumption reinsurance agreement shall not become effective unless filed in advance with and approved in writing by the Commissioner: Provided, however, That if a licensed insurer is deemed by the Commissioner to be in hazardous financial condition, as defined in article thirty-four-a of this chapter, or an administrative or judicial proceeding has been instituted against it for the purpose of liquidating, reorganizing or conserving such the insurer, and the transfer of the contracts of insurance is determined by the Commissioner to be in the best interest of the policyholders, the Commissioner may by written order waive the advance filing and approval required by this section, which such waiver may include a form of implied consent and adequate notification to the policyholder of the circumstances requiring the transfer.
(f) The Commissioner shall approve such a reinsurance agreement within one hundred twenty days after the filing of same unless he or she finds that it is inequitable to the licensed insurer, its owners or its policyholders or would substantially reduce the protection or service to its policyholders. If the Commissioner does not approve the agreement, he or she shall so notify the insurer in writing specifying his or her reasons therefor. If the Commissioner does not disapprove the agreement within one hundred twenty days, the agreement shall be deemed approved.
(g) A filing may not be made pursuant to this section unless the reinsurance agreement is certified under oath by responsible officers of the reinsurer and the reinsured to contain the entire agreement between the parties to the reinsurance agreement.
(h) The Commissioner shall promulgate rules and regulations pursuant to chapter twenty-nine-a of this code for the implementation and administration of the provisions of this section to include, but not be limited to, the type of assumption agreements subject to the provisions of this section, their content and the standards the Commissioner may utilize in reviewing the agreements.
(i) Any insurer subject to this section is also subject to the provisions of article thirty-eight of this chapter.
ARTICLE 10. REHABILITATION AND LIQUIDATION.

§33-10-41. Reinsurer's liability.
The amount recoverable by the liquidator from reinsurers may not be reduced as a result of delinquency proceedings unless the reinsurance contract provides, in substance, that in the event of the insolvency of the ceding insurer, the reinsurance shall be payable under a contract reinsured by the assuming insurer on the basis of reported claims allowed by the liquidation court, without diminution because of the insolvency of the ceding insurer. The payments shall be made directly to the ceding insurer or to its domiciliary liquidator except: (1) Where the contract or other written agreement specifically provides another payee of the reinsurance in the event of the insolvency of the ceding insurer; or (2) where the assuming insurer, with the consent of the direct insured, has assumed the policy obligations of the ceding insurer as direct obligations of the assuming insurer to the payees under the policies and in substitution for the obligations of the ceding insurer to the payees.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 459, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 459) passed with its title.
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. 491, Repealing article establishing compact for out-of-state parolee supervision.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 548, Relating to crime of assault and battery upon Public Service Commission motor carrier inspectors.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page five, line sixty-two, after the word "in" by striking the remainder of the bill and inserting in lieu thereof the following:
jail for not less than one month nor more than twelve months, fined the sum of five hundred dollars, or both. If any person commits a second such offense, he or she is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than one year nor more than three years or fined the sum of one thousand dollars or both fined and confined. Any person who commits a third violation of this subsection is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility not less than two years nor more than five years or fined not more than two thousand dollars or both fined and confined.
(d) Assault. -- Any person who unlawfully attempts to commit a violent injury to the person of a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry Employee, county correctional employee, state correctional employee, employee of a mass transportation system, Public Service Commission motor carrier inspector acting in his or her official capacity, or unlawfully commits an act which places a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, Division of Forestry Employee, county correctional employee or state correctional employee, employee of a mass transportation system, Public Service Commission motor carrier inspector acting in his or her official capacity in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than twenty-four hours nor more than six months, fined not more than two hundred dollars, or both fined and confined.
(e) For purposes of this section:
(1) "Police officer" means any person employed by the State Police, any person employed by the state to perform law-enforcement duties, any person employed by a political subdivision of this state who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of this state or employed as a special police officer as defined in section forty-one, article three of this chapter.
(2) "Employee of an Urban Mass Transportation System" means any person employed by an Urban Mass Transportation System as such is defined in section three, article twenty-seven, chapter eight of this code or by a system that receives federal transit administration funding under 49 U. S. C. §5307 or §5311.
(3) "Division of Forestry employee" means an officer, agent, employee or servant, whether full-time or not, of the Division of Forestry.

On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 548, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 548) passed with its title.
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 that that body had refused to concur in the Senate amendments to the House of Delegates amendments, and requested the Senate to recede therefrom, as to
Eng. Senate Bill No. 604, Establishing method for projecting increase in net enrollment for each school district.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the House of Delegates amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Plymale, Unger and Facemyer.
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 concurrence by that body in the passage of
Eng. Senate Bill No. 657, Providing exemption to time limit for filing petition to appeal decision of Tax Commission.
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. 692, Removing provision certain municipal officers required to have paid real or property taxes prior to election.
A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendment to the Senate amendment, and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for House Bill No. 2492, Providing a funding mechanism for teen court programs.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Long, Brown and Howard.
On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Hunter, Foster and Barnes.
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 that that body had agreed to the changed effective date to take effect July 1, 2005, of
Eng. House Bill No. 3105, Creating a special revenue fund for the provision of occupational safety and health initiatives.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 52--Requesting the West Virginia Division of Highways to name the bridge on I-64 at the intersection of Rt. 219 in Lewisburg, Greenbrier County, West Virginia, the "Gary Wayne Martini Memorial Bridge".
Whereas, Gary Wayne Martini, the son of William Lee Martini and the late Ann Aldridge Martini Humphrey, was born in Lexington, Virginia, on September 21, 1948, and moved at an early age to Greenbrier County, West Virginia, with his family; and
Whereas, Gary Wayne Martini was raised on Germany Road near Frankford, West Virginia, and attended Greenbrier County schools in Frankford; and
Whereas, Private First Class Gary Wayne Martini was killed in hostile action on April 21, 1967, at Binh Son, Republic of Vietnam, while serving with the U. S. Marine Corps, Company F, 2d Battalion, 1st Marines, 1st Marine Division; and
Whereas, Private First Class Gary Wayne Martini was awarded the Congressional Medal of Honor, posthumously, for his heroic actions on the field of battle, which are duly chronicled in this Medal of Honor Citation:
"For conspicuous gallantry and intrepidity at the risk of his life above and beyond the call of duty. On the 21st of April 1967, during Operation UNION elements of Company F, conducting offensive operations at Binh Son, encountered a firmly entrenched enemy force and immediately deployed to engage them. The Marines in Pfc. Martini's platoon assaulted across an open rice paddy to within 20 meters of the enemy trench line where they were suddenly struck by hand grenades, intense small arms, automatic weapons and mortar fire. The enemy onslaught killed 14 and wounded 18 Marines, pinning the remainder of the platoon down behind a low paddy dike. In the face of imminent danger, Pfc. Martini immediately crawled over the dike to a forward open area within 15 meters of the enemy position where, continuously exposed to the hostile fire, he hurled hand grenades, killing several of the enemy. Crawling back through the intense fire, he rejoined his platoon which had moved to the relative safety of a trench line. From this position he observed several of his wounded comrades lying helpless in the fire-swept paddy. Although he knew that one man had been killed attempting to assist the wounded, Pfc. Martini raced through the open area and dragged a comrade back to a friendly position. In spite of a serious wound received during this first daring rescue, he again braved the unrelenting fury of the enemy fire to aid another companion lying wounded only 20 meters in front of the enemy trench line. As he reached the fallen Marine, he received a mortal wound, but disregarding his own condition, he began to drag the Marine toward his platoon's position. Observing men from his unit attempting to leave the security of their position to aid him, concerned only for their safety, he called to them to remain under cover, and through a final supreme effort, moved his injured comrade to where he could be pulled to safety, before he fell, succumbing to his wounds. Stouthearted and indomitable, Pfc. Martini unhesitatingly yielded his life to save two of his comrades and ensure the safety of the remainder of his platoon. His outstanding courage, valiant fighting spirit and selfless devotion to duty reflected the highest credit upon himself, the Marine Corps, and the U. S. Naval Service. He gallantly gave his life for his country."; and
Whereas, Gary Wayne Martini gave the last full measure of devotion to his country and to his comrades-in-arms, sacrificing his own life to save the lives of his fellow soldiers; and
Whereas, Gary Wayne Martini is truly deserving of a fitting tribute in his home state of West Virginia to memorialize his heroic actions and supreme sacrifice; and
Whereas, The bridge on I-64 at the intersection of Rt. 219 is an appropriate edifice to honor this fallen hero, for Gary Wayne Martini lays peacefully resting in Rosewood Cemetery only a quarter of a mile from the bridge; and
Whereas, This bridge shall henceforth stand as a permanent memorial to Gary Wayne Martini so that his indomitable courage and selfless heroism will never be forgotten, for as it has been so eloquently stated, "Poor is a nation who has no heroes; shameful is a nation who has, and forgets them."; therefore, be it
Resolved by the Legislature of West Virginia:
That the members of the Legislature hereby request the West Virginia Division of Highways to name the bridge located on I-64 at the intersection of Rt. 219 in Lewisburg, Greenbrier County, West Virginia, the "Gary Wayne Martini Memorial Bridge"; and, be it
Further Resolved, That the West Virginia Division of Highways erect a sign at both ends of the bridge displaying the name of the bridge and designating that Gary Wayne Martini is a recipient of the Congressional Medal of Honor; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways, to Gary Wayne Martini's father, William Lee Martini, and to other surviving members of his family.
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 76--Requesting that the Joint Committee on Government and Finance study the state minimum wage amount and its effects on government programs and the state economy.
Whereas, The state minimum wage law has not been amended since the year 1997; and Whereas, The state has generally raised its minimum wage amount at the same time as the federal government; and Whereas, Several other states have increased their minimum wage amount above the amount federal law allows; and Whereas, Raising the minimum wage amount in this state will help the citizens of this state earn more; and Whereas, Raising the minimum wage amount in this state may help many citizens of this state end their dependency on state or federal poverty assistance and at the same time may create a burden on certain small businesses in the state; therefore, be it Resolved by the Legislature of West Virginia: That the Joint Committee on Government and Finance is requested to study the impact that increasing the minimum wage and the way wages are set generally in this state and the impact this has on government programs and the state economy and the number of jobs available; and, be it Further Resolved, That the Joint Committee on Government and Finance report on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations, to the next regular session of the Legislature; and, be it Further Resolved, That the expenses necessary to carry out its duties, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 78--Requesting the Joint Committee on Government and Finance study the awarding of state contracts, loans, grants and industrial revenue bonds to companies outsourcing certain jobs.
Whereas, In recent years, a number of companies have replaced highly skilled workers from this state with lower-paid, foreign laborers, a practice known as outsourcing; and
Whereas, In many cases, the impetus for the outsourcing is pressure from domestic and foreign capital venture companies that see foreign labor as a way of increasing their already significant profits; and
Whereas, The preservation of jobs in this state is of critical importance to the economic vitality of the state and the local communities within the state; and
Whereas, The economic dislocation caused by outsourcing jobs threatens the health, safety and welfare of the people of this state; and
Whereas, A company that engages in outsourcing should not enjoy the benefits of a lucrative state or local procurement contract and should be prohibited from receiving any economic development assistance or subsidies from state or local government; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the awarding of state contracts, loans, grants and industrial revenue bonds to companies outsourcing certain jobs; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2006, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
Com. Sub. for House Concurrent Resolution No. 79--Requesting the Joint Committee on Government and Finance to study the increasing drug problem in West Virginia, drug use among juveniles, criminal penalties related to drug use, treatment options and how the state can cooperate with other states, specifically in the border counties.
Whereas, There were 2,060 state and local arrests for drug abuse violations in West Virginia during 2003; and
Whereas, During 2002, the West Virginia Division of Criminal Justice Services funded one statewide and fifteen regional Drug and Violent Crime Control task forces. These task forces made 983 arrests for drug-related activity in 2002. The arrests resulted in 1,465 offenses charged to adults and 22 offenses charged to juveniles (some arrests involved more than one offense); and
Whereas, Approximately 55 percent of West Virginia 12th graders surveyed in 2003 reported using marijuana at least once during their lifetime; and
Whereas, Powder and crack cocaine are widely available in most West Virginia cities. Abuse of crack is usually restricted to low and low-middle income individuals, but crosses all ethnic lines; and
Whereas, The border counties in the northern panhandle are facing an influx of heroin; and
Whereas, Marijuana is the most widely available and commonly used drug in West Virginia. The state consistently ranks in the top ten states for marijuana eradication and commonly serves as a source area for domestic marijuana; and
Whereas, Methamphetamine has become an increasing drug threat to West Virginia; and
Whereas, Demand for MDMA (ecstasy) in West Virginia has increased, but abuse remains concentrated near Morgantown, which is the location of West Virginia University. The demand for MDMA in college towns is large enough to bring thousands of pills into the state every month. The state's remote terrain also makes it suitable to host "rave" parties; and
Whereas, West Virginia was one of the first areas in the United States to experience widely publicized problems with oxycodone diversion and abuse. Pharmaceutical drug abuse in general has always been an enormous concern in West Virginia, particularly in the southern region; and
Whereas, In 2000, the U. S. Drug Enforcement Administration reported there were a total of 145 methamphetamine lab seizures, including labs and dump sites in West Virginia and its bordering states; and
Whereas, There exists no coordinated national response to the methamphetamine (meth) issues faced by states. The United States currently lacks a centralized clearinghouse for meth-related information; and
Whereas, Currently there exists no centralized dedicated stream of funding for states to access for assisting in countering the criminal, health, social and environmental effects of meth; and
Whereas, Law-enforcement officials are faced with increasing challenges as meth and meth production shift from state to state as laws vary across the region; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the increasing drug problem in West Virginia, drug use among juveniles, criminal penalties related to drug use, treatment options and how this state can cooperate with other states, specifically in the border counties; and, be it
Further Resolved, That the Joint Committee on Government and Finance report on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations, to the next regular session of the Legislature; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Referred to the Committee on Rules.
The Senate proceeded to the fourth order of business.
Senator Hunter, from the Committee on Military, submitted the following report, which was received:
Your Committee on Military has had under consideration
Senate Concurrent Resolution No. 72, Honoring families of West Virginia soldiers who have made ultimate sacrifice to our state and nation by presentation of "Mountaineer Freedom Medal".
And,
House Concurrent Resolution No. 46, Recognizing and acknowledging Vietnam Veterans Recognition Week.
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Jon Blair Hunter,
Chair.
At the request of Senator Hunter, unanimous consent being granted, Senate Concurrent Resolution No. 72 contained in the preceding report from the Committee on Military was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Tomblin (Mr. President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 81, Requesting Joint Committee on Government and Finance study Massage Therapy Licensure Board.
Senate Concurrent Resolution No. 87, Requesting Joint Committee on Government and Finance study cost of operating regional jails.
And,
House Concurrent Resolution No. 59, Requesting the Joint Committee on Government and Finance direct the Legislature to study the concept of including clinic-based health care as a prepaid limited health service.
And reports the same back with the recommendation that
they each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2271, Relating to the payment of expert fees in child abuse and neglect cases.
Now on second reading, having been read a first time and referred to the Committee on Finance on April 6, 2005;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
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. 2334, Relating to limiting child out-of-state placements.
With an amendment from the Committee on the Judiciary pending;
Now on second reading, having been read a first time and referred to the Committee on Finance on April 6, 2005;
And reports the same back with the recommendation that it do pass as amended by the Committee on the Judiciary to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
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. 2578, Increasing the ratios of professional and service personnel to students in net enrollment.
With amendments from the Committee on Education pending;
And reports the same back with the recommendation that it do pass as amended by the Committee on Education to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2578) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. House Bill No. 2782, Increasing the number of members a municipality may appoint to a board of park and recreation commission from not less than three to not more than seven.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bill (Eng. H. B. No. 2782) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. House Bill No. 3016, Excepting the making of appointments by secretaries of licensed real estate brokers and salespersons with buyers and sellers of real estate from the scope of practice of real estate brokerage subject to licensing.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Government Organization.
At the request of Senator Bowman, unanimous consent being granted, the bill (Eng. H. B. No. 3016) was taken up for immediate consideration, read a first time and ordered to second reading.

Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 3152, Clarifying that the Board of Risk and Insurance Management is not to provide insurance for every property, activity or responsibility of the county boards of education.
With amendments from the Committee on Banking and Insurance pending;
Now on second reading, having been read a first time and referred to the Committee on Finance on April 6, 2005;
And reports the same back with the recommendation that it do pass as amended by the Committee on Banking and Insurance to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
The Senate proceeded to the sixth order of business.
Senator Unger offered the following resolution:
Senate Resolution No. 40--
Recognizing the West Virginia Chemical, Biological, Radiological, Nuclear and High Yield Explosive Enhanced Response Force (CERFP) Team.
Whereas, The West Virginia CERFP Team, comprised of two Air Force and 11 Army Guard Units throughout the State of West Virginia, came together as one cohesive response unit in only five months; and
Whereas, The West Virginia CERFP Team received an outstanding score of 99 percent on its final evaluation by the First Army, WMD Division, and has been recognized throughout the country as a leader among Weapons of Mass Destruction Response Teams; and
Whereas, In 2005, the West Virginia CERFP Team was activated in support of both the inauguration of West Virginia Governor Joe Manchin III and the inauguration of President George W. Bush; and
Whereas, The members of the West Virginia CERFP Team continue to protect the citizens of our state and nation and maintain a state of readiness to respond; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the West Virginia Chemical, Biological, Radiological, Nuclear and High Yield Explosive Enhanced Response Force (CERFP) Team; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the members of the West Virginia CERFP Team.

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.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and, at the request of Senator Boley, unanimous consent being granted, returned to the second order of business and the introduction of guests.
The Senate again proceeded to the sixth order of business.
Senators Weeks, McKenzie, Sprouse, Harrison, McCabe, Foster, Yoder, Jenkins and Fanning offered the following resolution:
Senate Resolution No. 41--
Recognizing the achievements of the late John J. Young, Jr., educator and renowned rail photographer.
Whereas, John J. Young, Jr., was born in Wheeling, Ohio County; and
Whereas, John J. Young, Jr., worked for both Wheeling Mold and Foundry and the Wheeling & Lake Erie Railroad. In 1959, he moved to Binghamton, New York, and worked for Stickley Sivers Photo. Later, he worked in the audiovisual department at Broome Technical Community College; and
Whereas, John J. Young, Jr., had an exceptional relationship with students and later became the student advisor for the BTCC Student Government. He initiated a camera club on campus and taught students the art of photography. The formation of the camera club brought about the creation of photography classes, also taught by John J. Young, Jr., which are now part of Broome Technical Community College's communications curriculum; and
Whereas, John J. Young, Jr., retired from Broome Technical Community College in 1995 and returned to his beloved West Virginia; and
Whereas, John J. Young, Jr., gained prominence in photography
and is one of the world's most renowned rail photographers, with his photographs being published worldwide; and
Whereas, Sadly, John J. Young, Jr., passed away on November 27, 2004, leaving behind his beloved wife Elizabeth, five children and their spouses and several grandchildren and great- grandchildren; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the achievements of the late John J. Young, Jr., educator and renowned rail photographer; and, be it
Further Resolved, That the Senate express its pride at the accomplishments of John J. Young, Jr., a native West Virginian; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of the late John J. Young, Jr.

At the request of Senator Weeks, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had removed from the Senate third reading calendar, Engrossed Committee Substitute for House Bill No. 2296, Engrossed Committee Substitute for House Bill No. 2890 and Engrossed House Bill No. 2990; and from the Senate second reading calendar, Engrossed House Bill No. 2329, Engrossed Committee Substitute for House Bill No. 2369, Engrossed Committee Substitute for House Bill No. 2456, Engrossed Committee Substitute for House Bill No. 2471, Engrossed House Bill No. 2482, Engrossed Committee Substitute for House Bill No. 2501, Engrossed Committee Substitute for House Bill No. 2619, Engrossed Committee Substitute for House Bill No. 2877, Engrossed Committee Substitute for House Bill No. 2929, Engrossed House Bill No. 2963, Engrossed Committee Substitute for House Bill No. 2986, Engrossed House Bill No. 2989, Engrossed Committee Substitute for House Bill No. 3010, Engrossed Committee Substitute for House Bill No. 3023, Engrossed House Bill No. 3045, Engrossed House Bill No. 3125, Engrossed House Bill No. 3160, Engrossed Committee Substitute for House Bill No. 3174, Engrossed House Bill No. 3211, Engrossed House Bill No. 3308 and Engrossed House Bill No. 3340.
Senator Chafin also announced that in the same meeting, the Committee on Rules had returned to the Senate Calendar, on second reading, Engrossed House Bill No. 3281, under rule number seventeen of the Rules of the Senate.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 93, Requesting Joint Committee and Government and Finance study homeowners' and commercial property and casualty insurance.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Resolution No. 29, Urging United States Congress enact legislation regarding reduction targets for nitrogen oxide, sulphur dioxide and mercury.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
House Concurrent Resolution No. 21, Requesting the Department of Education to create a position in the Department to coordinate, oversee and advocate for public school libraries.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
House Concurrent Resolution No. 38, Requesting the executive departments to establish a coordinated succession planning process which includes providing opportunities to correct the system-wide gender pay disparity among state employees.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
House Concurrent Resolution No. 44, Requesting the Joint Committee on Government and Finance study alternatives to out-of- state placement of children committed to the care of the State of West Virginia.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 514, Increasing salaries of certain state officials, justices, circuit judges and family court judges.
On third reading, coming up in regular order, was 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, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--28.
The nays were: Barnes, Boley, Facemyer, Harrison, Minear and Weeks--6.
Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 514) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--28.
The nays were: Barnes, Boley, Facemyer, Harrison, Minear and Weeks--6.
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 S. B. No. 514) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2296, Increasing service of process fees and providing that the fees collected be deposited in the West Virginia deputy sheriff retirement fund.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2417, Relating to compressed gas container safe transport.
On third reading, coming up in regular order, was 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. Com. Sub. for H. B. No. 2417) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2522, Relating to creating and licensing mini-distilleries.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Harrison--1.
Absent: None.

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. 2522) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2669, Authorizing miscellaneous boards and agencies to promulgate legislative rules.
On third reading, coming up in regular order, was 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. Com. Sub. for H. B. No. 2669) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, 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. 2669--A Bill
to amend and reenact article 9, chapter 64 of the code of West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; legislative mandate or authorization for the promulgation of certain legislative rules by various executive or administrative agencies of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the Legislature; disapproving the promulgation of certain legislative rules; disapproving the promulgation of a legislative rule by the Board of Acupuncture relating to the dispensing of materia medica, formulary and legend drugs; authorizing Department of Agriculture to promulgate a legislative rule relating to animal disease control; authorizing Department of Agriculture to promulgate a legislative rule relating to the inspection of meat and poultry; authorizing Department of Agriculture to promulgate a legislative rule relating to commercial feed; authorizing Board of Chiropractic Examiners to promulgate a legislative rule relating to the chiropractic practice; authorizing Contractor Licensing Board to promulgate a legislative rule relating to the West Virginia Contractor Licensing Act; authorizing Board of Dental Examiners to promulgate a legislative rule relating to the Board; authorizing Board of Dental Examiners to promulgate a legislative rule relating to the formation and approval of professional limited liability companies; authorizing Board of Dental Examiners to promulgate a legislative rule relating to fees; authorizing Board of Dental Examiners to promulgate a legislative rule relating to the formation and approval of dental corporations; authorizing Family Protection Services Board to promulgate a legislative rule relating to perpetrator intervention programs licensure for correctional institutions; authorizing Governor's Committee on Crime, Delinquency and Correction to promulgate a legislative rule relating to law-enforcement training standards; authorizing Governor's Committee on Crime, Delinquency and Correction to promulgate a legislative rule relating to the protocol for law- enforcement response to domestic violence; disapproving the promulgation of a legislative rule by the Governor's Committee on Crime, Delinquency and Correction relating to motor vehicle stop data collection standards for the study of racial profiling; authorizing Hatfield-McCoy Regional Recreation Authority to promulgate a legislative rule relating to use of facilities; authorizing Board of Professional Surveyors to promulgate a legislative rule relating to minimum standards for the practice of land surveying in West Virginia; authorizing Board of Examiners for Licensed Practical Nurses to promulgate a legislative rule relating to fees for services rendered by the Board; authorizing Public Service Commission to promulgate a legislative rule relating to statewide telephone information and referral 211 service; authorizing Radiologic Technology Board of Examiners to promulgate a legislative rule relating to the Board; authorizing Board of Examiners for Registered Professional Nurses to promulgate a legislative rule relating to fees for services rendered by the Board; authorizing Secretary of State to promulgate a legislative rule relating to agencies designated to provide voter registration services; authorizing Board of Examiners for Speech-Language Pathology and Audiology to promulgate a legislative rule relating to speech-language pathology and audiology assistants; authorizing State Treasurer to promulgate a legislative rule relating to procedures for fees in collections by charge, credit or debit card or by electronic payment; authorizing Board of Veterinary Medicine to promulgate a legislative rule relating to organization and operation; authorizing Board of Veterinary Medicine to promulgate a legislative rule relating to certified animal euthanasia technicians; and authorizing Board of Veterinary Medicine to promulgate a legislative rule relating to a schedule of fees.
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. 2669) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2890, Relating to unlawful methods of hunting and fishing.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 2990, Permitting the Director of the Natural Resources to set the time and date of the meeting for the convenience of the Public.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2176, Providing the offense of intimidating or harassing a judge or magistrate are also applicable to times when the judge or magistrate are off duty.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-27. Intimidation of and retaliation against public officials and employees, jurors and witnesses; fraudulent official proceedings and legal processes against public officials and employees; penalties.

(a) Definitions. -- As used in this section:
(1) "Fraudulent" means not legally issued or sanctioned under the laws of this state or of the United States, including forged, false and materially misstated;
(2) "Harassment means conduct directed at a specific person which would cause a reasonable person to be seriously alarmed and which, in fact, seriously alarms the subject of the behavior.
(2) (3) "Legal process" means an action, appeal, document instrument or other writing issued, filed or recorded to pursue a claim against person or property, exercise jurisdiction, enforce a judgment, fine a person, put a lien on property, authorize a search and seizure, arrest a person, incarcerate a person or direct a person to appear, perform or refrain from performing a specified act. "Legal process" includes, but is not limited to, a complaint, decree, demand, indictment, injunction, judgment, lien, motion, notice, order, petition, pleading, sentence, subpoena, summons, warrant or writ;
(3) (4) "Official proceeding" means a proceeding involving a legal process or other process of a tribunal of this state or of the United States;
(4) (5) "Person" means an individual, group, association, corporation or any other entity;
(5) (6) "Public official or employee" means an elected or appointed official or employee of a state or federal court, commission, department, agency, political subdivision or any governmental instrumentality;
(6) (7) "Recorder" means a clerk or other employee in charge of recording instruments in a court, commission or other tribunal of this state or of the United States; and
(7) (8) "Tribunal" means a court or other judicial or quasi-judicial entity or an administrative, legislative or executive body, or that of a political subdivision, created or authorized under the constitution or laws of this state or of the United States.
(b) Intimidation; harassment. -- It is unlawful for a person to use intimidation, physical force or the threat thereof, harassment or a fraudulent legal process or official proceeding, or to threaten or attempt to do so, with the intent to:
(1) Impede or obstruct a public official or employee from performing his or her official duties;
(2) Impede or obstruct a juror or witness from performing his or her official duties in an official proceeding;
(3) Influence, delay or prevent the testimony of any person in an official proceeding; or
(4) Cause or induce a person to: (A) Withhold testimony or withhold a record, document or other object from an official proceeding; (B) alter, destroy, mutilate or conceal a record, document or other object impairing its integrity or availability for use in an official proceeding; (C) evade an official proceeding summoning a person to appear as a witness or produce a record, document or other object for an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned; or
(5) Harass or intimidate a public official or employee based, in whole or in part, due to his or her official position or employment, regardless of whether or not the harassment or intimidation occurs during work hours
.
(c) Retaliation. -- It is unlawful for a person to cause injury or loss to person or property, or to threaten or attempt to do so, with the intent to:
(1) Retaliate against a public official or employee for the performance or nonperformance of an official duty;
(2) Retaliate against a juror or witness for performing his or her official duties in an official proceeding;
(3) Retaliate against any other person for attending, testifying or participating in an official proceeding, or for the production of any record, document or other object produced by a person in an official proceeding.
(d) Subsection (b) offense. -- A person who is convicted of an offense under subsection (b) of this section is guilty of a misdemeanor and shall be confined in jail for not more than one year or fined not more than one thousand dollars, or both.
(e) Subsection (c) or subsequent offense. -- A person convicted of an offense under subsection (c) of this section or a second offense under subsection (b) of this section is guilty of a felony and shall be confined in the penitentiary state correctional facility not less than one nor more than ten years or fined not more than two thousand dollars, or both.
(f) Civil cause of action. -- A person who violates this section is liable in a civil action to any person harmed by the violation for injury or loss to person or property incurred as a result of the commission of the offense and for reasonable attorney's fees, court costs and other expenses incurred as a result of prosecuting a civil action commenced under this subsection, which is not the exclusive remedy of a person who suffers injury or loss to person or property as a result of a violation of this section.
(g) Civil sanctions. -- In addition to the criminal and civil penalties set forth in this section, any fraudulent official proceeding or legal process brought in a tribunal of this State in violation of this section shall be dismissed by the tribunal and the person may be ordered to reimburse the aggravated person for reasonable attorney's fees, court costs and other expenses incurred in defending or dismissing such the action.
(1) Refusal to record. -- A recorder may refuse to record a clearly fraudulent lien or other legal process against a public official or employee or his or her property. The recorder does not have a duty to inspect or investigate whether a lien or other legal process is fraudulent nor is the recorder liable for refusing to record a lien or other legal process that the recorder believes is in violation of this section.
(2) If a fraudulent lien or other legal process against a public official or employee or his or her property is recorded then:
(A) Request to release lien. -- The public official or employee may send a written request by certified mail to the person who filed the fraudulent lien or legal process, requesting the person to release or dismiss the lien or legal process. If such the lien or legal process is not properly released or dismissed within twenty-one days, then it shall be inferred that the person intended to harass the public official or employee in violation of subsection (b) of this section and shall be subject to the criminal penalties in subsection (d) of this section and any other remedies provided for in this section; or
(B) Notice of fraudulent lien. -- A government attorney on behalf of the public official or employee may record a notice of fraudulent lien or legal process with the recorder who accepted the lien or legal process for filing. Such The notice shall invalidate the fraudulent lien or legal process and cause it to be removed from the records. No filing fee shall be charged for the filing of the notice.
(h) A person's lack of belief in the jurisdiction or authority of this state or of the United States is no defense to prosecution of a civil or criminal action under this section.
(i) (1) Nothing in this section prohibits, or in any way limits, the lawful acts of legitimate public officials or employees.
(2) Nothing in this section prohibits, or in any way limits, a person's lawful and legitimate right to freely assemble, express opinions or designate group affiliation.
(3) Nothing in this section prohibits, or in any way limits, a person's lawful and legitimate access to a tribunal of this state or prevents a person from instituting or responding to a lawful action.
The bill (Eng. Com. Sub. for H. B. No. 2176), as amended, was then ordered to third reading.
Eng. House Bill No. 2329, Authorizing a court to order a defendant to contribute monetarily or through hours of service to a local crime victim's assistance program.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2369, Authorizing the superintendent of the West Virginia state police to operate a voluntary contribution fund for designated beneficiaries of deceased officers.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2456, Ratifying the federal National Crime Prevention and Privacy Compact.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2471, Establishing a financial responsibility program for inmates.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2476, Relating generally to parole and parole proceedings.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page five, section nineteen, lines sixty-seven through seventy-one, by striking out the following: Any person having been released on parole three times and subsequently had his or her parole revoked for violations of any term or condition of parole shall serve the remainder of his or her sentence and is not eligible for further release on parole.
The bill (Eng. Com. Sub. for H. B. No. 2476), as amended, was then ordered to third reading.
Eng. House Bill No. 2482, Relating to including jails within the context of certain criminal acts by incarcerated persons.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2501, Providing for the termination of the agency, Jobs for West Virginia's Graduates, from the Public Employees Retirement System.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2523, Making it a crime for released inmates to contact correctional employees and requiring that inmates be advised of such prohibition upon release.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §61-10-32, to read as follows:
ARTICLE 10. CRIMES AGAINST PUBLIC POLICY.
§61-10-32. Unlawful contact with a Division of Corrections' employee or member of the parole board; penalty.

(a) It shall be unlawful for a former inmate of the Division of Corrections to make a telephone call to a Division of Corrections' employee or member of the parole board when the employee has requested in writing to that former inmate that he or she not call and the former inmate has actually been served with a copy of the written request.
(b) It shall be unlawful for a former inmate of the Division of Corrections to willfully and repeatedly follow a Division of Corrections' employee or member of the parole board with whom he or she seeks to establish a personal or social relationship when the Division of Corrections' employee or member of the parole board has expressed to the former inmate that he or she wishes not to have contact with the former inmate.
(c) It shall be unlawful for a former inmate of the Division of Corrections to harass or make credible threats against a Division of Corrections' employee or member of the parole board.
(d) Any offense committed under subsection (a) of this section may be deemed to have occurred at the place at which the telephone call was made or the place at which the telephone call was received.
(e) Any person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall, for a first offense, be fined not more than five hundred dollars. Any person violating this section for a second offense shall be imprisoned not less than ten days nor more than six months, or both fined and imprisoned.
(f) For purposes of this section:
(1) "Harass" means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress;
(2) "Credible threat" means a threat of bodily injury made with apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat would be carried out;
(3) "Bodily injury" means substantial physical pain, illness or any impairment of physical condition;
(4) "Immediate family" means a spouse, parent, stepparent, mother-in-law, father-in-law, child, stepchild, sibling or any person who regularly resides in the household or within the prior six months regularly resided in the household.
(g) Upon conviction, the court may issue an order restraining the defendant from any contact with the victim for a period not to exceed ten years. The length of any restraining order shall be based upon the seriousness of the violation before the court, the probability of future violations and the safety of the victim or his immediate family. The duration of the restraining order may be longer than five years only in cases when a longer duration is necessary to protect the safety of the victim or his or her immediate family.
(h) It is a condition of bond for any person accused of the offense described in this section that the person is to have no contact, direct or indirect, verbal or physical with the alleged victim.
The bill (Eng. Com. Sub. for H. B. No. 2523), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2619, Providing that moneys from revenues allocated to volunteer and part volunteer fire companies and departments may be expended for the payment of dues to national, state and county associations.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2663, Relating to digging, growing, collecting, gathering, possessing and selling ginseng.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Agriculture, were reported by the Clerk, considered simultaneously, and adopted:
On page twenty, section three-a, line two hundred ninety- eight, by striking out the words "imprisoned in jail" and inserting in lieu thereof the words "confined in a correctional facility".
The following amendment to the bill, from the Committee on the Judiciary, was next reported by the Clerk and adopted:
On page sixteen, section three-a, line two hundred twenty-two, by striking out all of paragraph (ii);
And,
By renumbering the remaining paragraphs.
The bill (Eng. Com. Sub. for H. B. No. 2663), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2718, Authorizing the Department of Commerce to promulgate legislative rules.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page three, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That article 10, chapter 64 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE LEGISLATIVE RULES.

§64-10-1. Economic Development Authority.
The legislative rule filed in the State Register on the twenty-fourth day of August, two thousand four, under the authority of section nine, article thirteen-u, chapter eleven of this code, modified by the Economic Development Authority to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the first day of February, two thousand five, relating to the Economic Development Authority (high-growth business investment tax credit, 117 CSR 5), is authorized with the following amendments:
On page three, section three, line 4, by striking all of sections 3.2.b., 3.2.c. and 3.2.c.1 and inserting in lieu thereof the following:
"3.2.b. The Authority may not allocate more than fifty thousand dollars of this tax credit to an eligible taxpayer in a fiscal year.
3.2.c. Any unused portion of the tax credit may be carried forward to succeeding taxable years until the expiration of the fourth taxable year after the taxable year in which the investment was made. The tax credit remaining thereafter is forfeited.";
And,
On page three, section three, line 18, following the word "The" by striking out the word "Statute" and inserting in lieu thereof the word "tax credit".
§64-10-2. Bureau of Employment Programs.
The legislative rule filed in the State Register on the nineteenth day of March, two thousand four, under the authority of section six, article two, chapter twenty-one-a of this code, modified by the Bureau of Employment Programs to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of June, two thousand four, relating to the Bureau of Employment Programs (implementing the requirement that prohibits agencies from granting, issuing or renewing contracts, licenses, permits, certificates or other authority to conduct a trade, profession or business, 96 CSR 1), is authorized with the following amendment:
On page five, section five, line 1, following the word "The" by striking out the word "authorizing" and inserting the word "approval".
§64-10-3. Division of Labor.
(a) The legislative rule filed in the State Register on the twelfth day of August, two thousand four, under the authority of section eleven, article three-c, chapter twenty-one of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of February, two thousand five, relating to the Division of Labor (Elevator Safety Act, 42 CSR 21), is authorized with the following amendments:
On page three, subdivision 6.1., after the words "private inspector may not" by striking out the words "provide inspection services to an elevator on which the inspector, his or her employer or employee of his or her employer has made repairs or provided routine maintenance" and inserting in lieu thereof the words "inspect repairs or routine maintenance work performed by the inspector, the inspector's employer or another employee of the inspector"s employer";
And,
On page three, subdivision 6.1., after the words "may enter into any" by inserting the words "state owned".
(b) The legislative rule filed in the State Register on the twelfth day of August, two thousand four, under the authority of section twenty, article one, chapter forty-seven of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of February, two thousand five, relating to the Division of Labor (weights and measures calibration fees, 42 CSR 26), is authorized.
(c) The legislative rule filed in the State Register on the twenty-seventh day of August, two thousand four, under the authority of section four, article nine, chapter twenty-one of this code, relating to the Division of Labor (West Virginia Manufactured Housing Construction and Safety Standards Board, 42 CSR 19), is authorized.
§64-10-4. Division of Natural Resources.

(a) The legislative rule filed in the State Register on the twenty-seventh day of August, two thousand four, under the authority of section twenty-three-a, article two, chapter twenty of this code, relating to the Division of Natural Resources (commercial whitewater outfitters, 58 CSR 12), is authorized.
(b) The legislative rule filed in the State Register on the twenty-third day of August, two thousand four, under the authority of section seven, article one, chapter twenty of this code and section eleven, article two of said chapter, relating to the Division of Natural Resources (commercial sale of wildlife, 58 CSR 63), is authorized.
(c) The legislative rule filed in the State Register on the twelfth day of August, two thousand four, under the authority of section seven, article one, chapter twenty of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of November, two thousand four, relating to the Division of Natural Resources (revocation of hunting and fishing licenses, 58 CSR 23), is authorized.
The bill (Eng. Com. Sub. for H. B. No. 2718), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2723, Authorizing the Department of Environmental Protection to promulgate legislative rules.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:
On page eight, section two, line nine, after the word "authorized" by inserting a period and striking out the remainder of the bill.
Following discussion,
The question being on the adoption of the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 2723), and on this question, Senator Minear demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Bowman, Chafin, Dempsey, Edgell, Fanning, Foster, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Plymale, Unger, White and Tomblin (Mr. President)--17.
The nays were: Barnes, Boley, Caruth, Deem, Facemyer, Guills, Harrison, Helmick, Lanham, McKenzie, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Weeks and Yoder--17.
Absent: None.
So, a majority of those present and voting not having voted in the affirmative, the President declared the Judiciary committee amendment to the bill rejected on a tie vote.
The bill (Eng. Com. Sub. for H. B. No. 2723) was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2812, Extending the time for the Preston County Board of Education to meet as a levying body for the purpose of presenting a special levy election for the voters in the county.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
PRESTON COUNTY SCHOOL BOARD MEETING AS LEVYING BODY EXTENDED.
§1. Extending time for the Preston County School Board to meet as levying body for an election enacting a special levy for school funding.

Notwithstanding the provision of article eight, chapter eleven of the Code of West Virginia, 1931, as amended, the Board of Education of Preston County, West Virginia, is hereby authorized to extend the time for its meeting as a levying body, setting the levy rate and certifying its actions to the State Tax Commissioner from between the seventh and twenty-eighth days of March and the third Tuesday in April until the ninth day of May, two thousand five, for the purpose of submitting to the voters of Preston County the question of enacting a special levy for school funding.
The bill (Eng. Com. Sub. for H. B. No. 2812), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2816, Creating the West Virginia Healthy Act of 2005.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-1E-1, §5-1E-2, §5-1E-3, §5-1E-4 and §5-1E-5; and that §18-2-6a, §18-2-7a and §18- 2-9 of said code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,

SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 1E. HEALTHY WEST VIRGINIA PROGRAM.
§5-1E-1. Findings and purposes.
The Legislature finds and declares that the rise in obesity and related weight problems accompanied by the resulting incidence of chronic disease has created a health care crisis that burdens the health care infrastructure of the state. The Legislature also finds that the State of West Virginia must take an informed, sensitive approach to communicate and educate the citizens of the state about health issues related to obesity and inappropriate weight gain. The Legislature further finds that the state must take action to assist West Virginia citizens in engaging in healthful eating and regular physical activity. The Legislature further finds that the state must invest in research that improves understanding of inappropriate weight gain and obesity. These efforts are needed to coordinate the state's interest in improving the health of its citizens and in reducing the cost of health care. Therefore, it is the purpose of this article to create, as an integral part of the Department of Health and Human Resources, an entity to coordinate the efforts of all agencies to prevent and remedy obesity and related weight problems and to ensure that all citizens are being educated on this serious health risk that is affecting the state.
§5-1E-2. Creation of the Office of Healthy Lifestyles.
There is hereby created the Office of Healthy Lifestyles within the Department of Health and Human Resources. The management of this office shall be provided in the manner determined by the Secretary of the Department of Health and Human Resources to be in the best interest of the state and its citizens.
§5-1E-3. Powers and duties of the Office.
The Office of Healthy Lifestyles shall:
(1) Establish a Healthy Lifestyle Coalition to assure consistency of the public health and private sector approach to dealing with programs that address the problems that affect overweight and obese individuals, to provide a forum for discussing the issues that affect healthy lifestyles and to identify best practices that can be replicated. By the first day of July, two thousand five, the Governor shall appoint thirteen members of the Coalition whose terms shall be for a period of four years, and the members may be reappointed to a second term. The terms may be staggered by the Governor to assure continuity of experience on the Coalition. Members shall represent state agencies, community organizations and other entities which have an interest and expertise in obesity. Members may not be compensated but shall receive reimbursement for expenses incurred while performing the business of the coalition. The Coalition shall meet monthly for at least the first eighteen months of the Coalition to develop and implement an action plan to meet the goals established by the Coalition;
(2) Establish a clinical advisory committee to assure a unified approach using the latest research to assure consistency in program development;
(3) Establish a statewide voluntary private sector partnership and recognition program for employers, merchants, restaurants and other private sector businesses to encourage the development or further advance current programs that encourage healthy lifestyles;
(4) Coordinate higher education training programs for dietary and exercise physiology students with rural health care providers;
(5) Coordinate existing health promotion initiatives to assure clear, concise and consistent communication;
(6) Solicit, accept and expend grants, gifts, bequests, donations and other funds from any source for programs that will enable the state to accomplish the goals of this program;
(7) Develop a cross-agency series of goals to ensure consistency throughout the system of providers and agencies working in the area of improving lifestyles;
(8) Establish as a goal to increase the prevalence of healthy weight among all people in the state because obesity leads to diabetes, heart disease, strokes and kidney failure. These diseases, often arising in older age as a result of unhealthy lifestyles that began during a person's youth, place an undue financial burden on individuals, the health care industry and state health care programs;
(9) Consider the resources of the local health departments and recommend ongoing relationships, as appropriate, between local health departments, family resource networks, faith-based organizations, cooperative extension services, farm bureaus and other health care providers;
(10) Encourage the development of incentives for participation in employee wellness programs. Incentives may be based upon, but should not be limited to, the employee's completion of health questionnaires or participating in healthy lifestyles initiatives and may use experiences of successful initiatives that have occurred in this state. The action plan should include among its targets, state government employees in this incentive program;
(11) Build upon existing initiatives that focus on any of the Coalition's goals, soliciting input from these initiatives and eliminating duplication of efforts;
(12) Report its progress annually by the first day of December to the Legislative Oversight Commission on Health and Human Resources Accountability.
§5-1E-4. Partnership to encourage healthy lifestyles by children and families.

(a) The West Virginia Healthy Lifestyles program will develop a statewide voluntary private sector partnership program to work with businesses throughout the state that encourage and promote healthy lifestyles among their employees and communities.
(b) Beginning the first day of July, two thousand five, those businesses voluntarily choosing to participate in the Healthy Lifestyles program shall submit their own detailed programs to the Office of Healthy Lifestyles for review. The programs should be creative and unique, highlighting the efforts of the business to promote healthy lifestyles to West Virginians through sensible diet and physical fitness.
(c) The West Virginia Healthy Lifestyles program will develop a recognition program for private sector enterprises that develop or advance programs that address the problems affecting overweight and obese individuals and that promote a healthy lifestyle.
(d) Any business program promoting healthy lifestyles that is recognized by the Office of Healthy Lifestyles will be issued a universally recognized logo, suitable for public display by the business.
(e) Marketing of programs recognized by the Office of Healthy Lifestyles shall take place through all state agencies. The West Virginia Public Employees Insurance Agency, the Bureau for Medical Services and the West Virginia Workers' Compensation Commission shall aggressively market this program to their members for the purposes of health promotion among their members.
(f) The Office of Healthy Lifestyles shall market recognized programs to other businesses, as models, to help create additional programs promoting healthy lifestyles.
(g) The Office of Healthy Lifestyles shall report annually by the first day of December to the Legislative Oversight Commission on Health and Human Resources Accountability: (1) The number of participants; (2) the impact on businesses as established by a survey of participating businesses; and (3) the results of consumer satisfaction surveys all designed by the Office of Healthy Lifestyles.
§5-1E-5. Creation of a Healthy Lifestyles Fund.
There is hereby created in the State Treasury a separate special revenue account, which shall be an interest-bearing account, to be known as the "Healthy Lifestyles Fund". The special revenue account shall consist of all appropriations made by the Legislature, income from the investment of moneys held in the special revenue account and all other sums available for deposit to the special revenue account from any source, public or private. No expenditures for purposes of this section are authorized from collections except in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions set forth in article two, chapter eleven-b of this code. Any balance remaining in the special revenue account at the end of any state fiscal year does not revert to the general revenue fund but remains in the special revenue account and shall be used solely in a manner consistent with this article. No expenses incurred under this section shall be a charge against the general funds of the state.
CHAPTER 18. EDUCATION.

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-6a. Sale of healthy beverages and soft drinks in schools.
(a) In order to generate funding for necessary programs and supplies, county boards may permit the sale of healthy beverages and soft drinks in county high schools except during breakfast and lunch periods as follows:
(1) During a school day, soft drinks may not be sold in areas accessible to students in an elementary school, middle school or junior high school through vending machines on the premises, in school stores or in school canteens or through fundraisers by students, teachers, groups or by any other means. In elementary, middle school or junior high school, only healthy beverages may be sold in vending machines on the premises, in school canteens or through fundraisers by students, teachers, groups or by any other means. Nothing in this section shall be construed to prohibit or limit sale or distribution of any food or beverage item through fund-raising activities of students, teachers or educational groups when the items are intended for sale off the school grounds.(2) Those high schools which permit the sale of soft drinks through vending machines also shall offer for sale healthy beverages. Of the total beverages offered for sale, at least fifty percent shall be healthy beverages. Vending machines containing healthy beverages shall be in the same location or substantially similar location as vending machines containing soft drinks.
(3) The sale of such healthy beverages and soft drinks shall be in compliance with the rules of the National School Lunch Program and the School Breakfast Program of the State Board and the Nutrition Service of the United States Department of Agriculture, which became effective on the seventeenth day of June, one thousand nine hundred eighty-five. Provided, That, if under such rules, the sale of soft drinks shall become prohibited, such rules shall not prohibit the sale of soft drinks in high schools in the state of West Virginia. Seventy-five percent of the profits from the sale of healthy beverages and soft drinks shall be allocated by a majority vote of the faculty senate of each school and twenty-five percent of the profits from the sale of healthy beverages and soft drinks shall be allocated to the purchase of necessary supplies by the principal of the school.
(b) For the purposes of this section:
(1) "School day" means the period of time between the arrival of the first student at the school building and the end of the last instructional period; and
(2) "Healthy beverage" means water, one hundred percent fruit and vegetable juice, low-fat milk and other juice beverages with a minimum of twenty percent real juice.

§18-2-7a. Legislative findings; required physical education; program in physical fitness.

(a) The Legislature hereby finds that obesity is a problem of epidemic proportions in this state. There is increasing evidence that all segments of the population, beginning with children, are becoming more sedentary, more overweight and more likely to develop health risks and diseases including Type II diabetes, high blood cholesterol and high blood pressure. The Legislature further finds that the promotion of physical activity during the school day for school children is a crucial step in combating this growing epidemic and in changing the attitudes and behavior of the residents of this state toward health promoting physical activity.
(b) As a result of these findings, the State Department of Education shall establish the requirement that each child enrolled in the public schools of this state actively participates in physical education classes during the school year to the level of his or her ability as follows:
(1)
Kindergarten to and including grade five. -- Not less than thirty minutes of physical education, including physical exercise and age-appropriate physical activities, for not less than three days a week.
(2)
Grade six to and including grade eight. -- Not less than one full period of physical education, including physical exercise and age-appropriate physical activities, each school day of one semester of the school year.
(3)
Grade nine to and including grade twelve. -- Not less than one full course credit of physical education, including physical exercise and age-appropriate physical activities, which shall be required for graduation and the opportunity to enroll in an elective lifetime physical education course.
(c) Enrollment in physical education classes and activities required by the provisions of this section shall not exceed, and shall be consistent with, state guidelines for enrollment in all other subjects and classes:
Provided, That schools which do not currently have the number of certified physical education teachers or required physical setting may develop alternate programs that will enable current staff and physical settings to be used to meet the physical education requirements established herein. These alternate programs shall be submitted to the State Department of Education and the Healthy Lifestyle Council for approval. Those schools needing to develop alternate programs shall not be required to implement this program until the school year commencing two thousand six.
(d) The State Board of Education shall prescribe a program within the existing health and physical education program which incorporates the fitness testing, awards reporting, recognition, fitness events and incentive programs designed under the auspices of the President's Council on Physical Fitness and Sports and which requires the participation through grade nine of each student and of each school in the state in both the challenge program and the state champion program of the council in grades four through eight and the required high school course. The program shall be selected from nationally accepted fitness testing programs designed for school-aged children that test cardiovascular fitness, muscular strength and endurance, flexibility and body composition: Provided, That nothing in this subsection shall be construed to prohibit the use of programs designed under the auspices of the President's Council on Physical Fitness and Sports. The program shall include the modified test tests for exceptional students. Each school in the state shall participate in National Physical Fitness and Sports Month in May of each year and shall make every effort to involve the community it serves in the related events.
(e) Body mass index measures shall be used as an indicator of progress toward promoting healthy lifestyles among school-aged children. The body mass index measures shall be determined using student height and weight data and reported to the State Department of Education via the West Virginia Education Information System. Body mass index measures shall be included in kindergarten screening procedures. Students in grades four through eight and students enrolled in high school physical education courses shall have their body mass index measured through required fitness testing procedures. All school personnel responsible for conducting and reporting body mass index measures shall receive training or written documentation on the appropriate methodology for assessing the body mass index and reporting data in a manner that protects student confidentiality. All body mass index data shall be reported in aggregate to the Governor, the State Board of Education, the Healthy Lifestyles Coalition and the Legislative Oversight Commission on Health and Human Resources Accountability.
§18-2-9. Required courses of instruction; violation and penalty.

(a) In all public, private, parochial and denominational schools located within this state there shall be given prior to the completion of the eighth grade at least one year of instruction in the history of the state of West Virginia. Such The schools shall require regular courses of instruction by the completion of the twelfth grade in the history of the United States, in civics, in the Constitution of the United States, and in the government of the State of West Virginia for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of political and economic democracy in America and increasing the knowledge of the organization and machinery of the government of the United States and of the state of West Virginia. The State Board of education shall, with the advice of the State Superintendent, of schools prescribe the courses of study covering these subjects for the public schools. It shall be the duty of the officials or boards having authority over the respective private, parochial and denominational schools to prescribe courses of study for the schools under their control and supervision similar to those required for the public schools. To further such study, every high school student eligible by age for voter registration shall be afforded the opportunity to register to vote pursuant to section twenty-two, article two, chapter three of this code.
(b) The State Board of education shall cause to be taught in all of the public schools of this state the subject of health education, including instruction in any of the grades six through twelve as deemed considered appropriate by the county board, on: (1) The prevention, transmission and spread of acquired immune deficiency syndrome and other sexually transmitted diseases; and (2) substance abuse, including the nature of alcoholic drinks and narcotics, tobacco products and other potentially harmful drugs, with special instruction as to their effect upon the human system and upon society in general; and (3) the importance of healthy eating and physical activity to maintaining healthy weight. The course curriculum requirements and materials for such the instruction shall be adopted by the State Board by rule in consultation with the Department of Health and Human Resources. The State Board shall prescribe a standardized health education assessment to be administered within health education classes to measure student health knowledge and program effectiveness.
An opportunity shall be afforded to the parent or guardian of a child subject to instruction in the prevention, transmission and spread of acquired immune deficiency syndrome and other sexually transmitted diseases to examine the course curriculum requirements and materials to be used in such the instruction. The parent or guardian may exempt such the child from participation in such the instruction by giving notice to that effect in writing to the school principal.
(c) Any person violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not exceeding ten dollars for each violation, and each week during which there is a violation shall constitute a separate offense. If the person so convicted occupy a position in connection with the public schools, that person shall automatically be removed from such that position and shall be ineligible for reappointment to that or a similar position for the period of one year.
The bill (Eng. Com. Sub. for H. B. No. 2816), as amended, was then ordered to third reading.
Senator Deem moved that the Senate reconsider its action by which in earlier proceedings today it rejected the Judiciary committee amendment to Engrossed Committee Substitute for House Bill No. 2723 (shown in the Senate Journal of today, page 63).
Senator Hunter then moved that further consideration of Senator Deem's reconsideration motion be made a special order of business following conclusion of bills on today's first reading calendar.
The question being on the adoption of Senator Hunter's aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator Deem demanded a division of the vote.
A standing vote being taken, there were fifteen "yeas" and eighteen "nays".
Whereupon, the President declared Senator Hunter's motion had not prevailed.
The question now being on the adoption of Senator Deem's reconsideration motion, the same was put.
The result of the voice vote being inconclusive, Senator Bowman demanded a division of the vote.
A standing vote being taken, there were sixteen "yeas" and seventeen "nays".
Whereupon, the President declared Senator Deem's reconsideration motion had not prevailed.
The Senate then resumed consideration of the remainder of its second reading calendar, the next bill coming up in numerical sequence being
Eng. House Bill No. 2866, Providing for continuation of tuition and fee payments to members after discharge from military service due to wounds or injuries received in the line of duty.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:
On page two, section twenty-one, line twelve, by striking out the word "such" and inserting in lieu thereof the word "the";
On page two, section twenty-one, line seventeen, by striking out the word "such" and inserting in lieu thereof the word "the";
On page two, section twenty-one, line nineteen, after the word "may" by inserting the word "it";
And,
On page three, section twenty-one, line thirty-one, by striking out the word "Such" and inserting in lieu thereof the word "The".
The bill (Eng. H. B. No. 2866), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2877, Providing procedure for removal of county, district or municipal officers.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2929, Relating to the administration of anesthesia by dentists.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 2963, Clarifying the allowance of excess levy elections at primary elections and to remove language which conflicts with article ten, section eleven of the West Virginia Constitution.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2986, Relating to the regulation of selling new or used vehicles, providing for the comprehensive regulation and licensing of persons who sell new or used vehicles.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 2989, Authorizing the Division of Motor Vehicles to suspend or refuse to register vehicles of motor carriers whose authority to operate in interstate commerce has been denied or suspended.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 3010, Providing that the Commissioner of Corrections may authorize wardens or administrators to establish imprest funds for transporting inmates.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3018, Relating to designation of Mountaineer Challenge Academy as a special alternative education program.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On pages three through seven, by striking out all of section six and inserting in lieu thereof a new section six, to read as follows:
§18-2-6. Classification and standardization of schools; standards for degrees and diploma; certificates of proficiency; establishment of alternative education programs.

(a) The State Board shall make promulgate rules for the accreditation, classification and standardization of all schools in the state, except institutions of higher education, and shall determine the minimum standards for the granting of diplomas and certificates of proficiency by those schools. Not later than the school year one thousand nine hundred ninety--ninety-one, The certificates of proficiency including shall include specific information regarding the graduate's skills, competence and readiness for employment or honors and advanced education and shall be granted, along with the diploma, to every eligible high school graduate. The certificate of proficiency shall include the program of study major completed by the student only for those students who have completed the required major courses, or higher level courses, advanced placement courses, college courses or other more rigorous substitutes related to the major, and the recommended electives.
No (b) An institution of less than collegiate or university status may not grant any diploma or certificate of proficiency on any basis of work or merit below the minimum standards prescribed by the State Board.
No (c) A charter or other instrument containing the right to issue diplomas or certificates of proficiency shall may not be granted by the State of West Virginia to any institution or other associations or organizations of less than collegiate or university status within the state until the condition of granting or issuing such diplomas or other certificates of proficiency has first been approved in writing by the State Board.
(d) The State Board also may establish policies and procedures shall promulgate a rule for the approval of alternative education programs for disruptive students who are at risk of not succeeding in the traditional school structure. These policies and procedures This rule may provide for the waiver of other policies of the State Board, the establishment and delivery of a nontraditional curriculum, the establishment of licensure requirements for alternative education program teachers and the establishment of performance measures for school accreditation.
(e) If a student attends an approved alternative education program or the Mountaineer Challenge Academy, which is designated as a special alternative education program pursuant to section twenty-four, article one-b, chapter fifteen of this code, and the student graduates or passes the General Equivalency Development (GED) tests within five years of beginning ninth grade, that student shall be considered graduated for the purposes of calculating the high school graduation rate used for school accreditation and school system approval, subject to the following:
(1) The student shall only be considered graduated to the extent that this is not in conflict with any provision of federal law relating to graduation rates;
(2) If the State Board determines that this is in conflict with a provision of federal law relating to graduation rates, the State Board shall request a waiver from the United States Department of Education; and
(3) If the waiver is granted, notwithstanding the provisions of subdivision (1) of this subsection, the student graduating or passing the General Educational Development (GED) tests within five years shall be considered graduated.
(f) The State Board shall promulgate a rule to support the operation of the National Guard Youth Challenge Program operated by the Adjutant General and known as the "Mountaineer Challenge Academy" which is designated as a special alternative education program pursuant to section twenty-four, article one-b, chapter fifteen of this code for students who are at risk of not succeeding in the traditional school structure. The rule shall set forth policies and procedures applicable only to the Mountaineer Challenge Academy that provide for, but are not limited to, the following:
(1) Implementation of provisions set forth in section twenty-four, article one-b, chapter fifteen of this code;
(2) Precedence of the policies and procedures designated by the National Guard Bureau for the operation of the Mountaineer Challenge Academy special alternative education program;
(3) Consideration of a student participating in the Mountaineer Challenge Academy special alternative education program at full enrollment status in the referring county for the purposes of funding and calculating attendance and graduation rates, subject to the following:
(A) The student shall only be considered at full enrollment status for the purposes of calculating attendance and graduation rates to the extent that this is not in conflict with any provision of federal law relating to attendance or graduation rates;
(B) If the State Board determines that this is in conflict with a provision of federal law relating to attendance or graduation rates, the State Board shall request a waiver from the United States Department of Education;
(C) If the waiver is granted, notwithstanding the provisions of paragraph (A) of this subdivision, the student shall be considered at full enrollment status in the referring county for the purposes of calculating attendance and graduation rates; and
(D) Consideration of the student at full enrollment status in the referring county is for the purposes of funding and calculating attendance and graduation rates only. For any other purpose, a student participating in the Academy is considered withdrawn from the public school system;
(4) Articulation of the knowledge, skills and competencies gained through alternative education so that students who return to regular education may proceed toward attainment or attain the standards for graduation without duplication; and
(5) Consideration of eligibility to take the General Educational Development (GED) tests by qualifying within the extraordinary circumstances provisions established by State Board rule of a student participating in the Mountaineer Challenge Academy special alternative education program who does not meet any other criteria for eligibility.
(g) Nothing in this section or the rules promulgated hereunder compels the Mountaineer Challenge Academy to be operated as a special alternative education program or to be subject to any other laws governing the public schools except by its consent.
(h) The State Board shall report to the Legislative Oversight Commission on Education Accountability on or before the first day of January of each year on its efforts to cooperate with and support the Mountaineer Challenge Academy pursuant to this section and section twenty-four, article one-b, chapter fifteen of this code.

The bill (Eng. H. B. No. 3018), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3023, Raising revenues by assessments and collections on all breeding age sheep and goats to fund the state's participation in a federal coyote control program.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3031, Prohibiting unlicensed practice of landscape architecture.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §30-22-5a, to read as follows:
ARTICLE 22. LANDSCAPE ARCHITECTS.
§30-22-5a. Limited fee increase.
Notwithstanding the fees set forth in this article, the West Virginia State Board of Landscape Architects is hereby authorized to increase the fees it assesses under the provisions of this article. The fee increase shall be for one year, commencing the first day of July, two thousand five. Each increased fee may not exceed one hundred dollars.
The bill (Eng. H. B. No. 3031), as amended, was then ordered to third reading.
Eng. House Bill No. 3045, Relating to the creation and modification of public service districts.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 3051, Relating to defining certain terms relative to hunting.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Natural Resources, were reported by the Clerk, considered simultaneously, and adopted:
On page four, section two, line forty-three, by striking out the word "galliformes" and inserting in lieu thereof the word "gallinule";
And,
On page four, line forty-five, by striking out the word "galli" and inserting in lieu thereof the word "galliformes".
The bill (Eng. Com. Sub. for H. B. No. 3051), as amended, was then ordered to third reading.
Eng. House Bill No. 3125, Providing for biannual independent review of the Neighborhood Investment Program and to extend the program until July 1, 2008.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3160, Authorizing the Consolidated Public Retirement Board to charge delinquency fees approximating lost interest or earnings.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 3174, Providing that expressions of apology, responsibility, sympathy, condolence or a general sense of benevolence made by a health-care provider to a patient, shall be inadmissable as evidence of admission of liability.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3203, Authorizing the closure of certain existing retirement funds for municipal policemen and firemen and establishment of a defined contribution plan in lieu thereof.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Pensions, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That §8-13C-1 and §8-13C-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §8-13C-14, all to read as follows:
ARTICLE 13C. MUNICIPAL TAX IN LIEU OF BUSINESS AND OCCUPATION TAX; AND MUNICIPAL TAXES APPLICABLE TO PENSION FUNDS; ADDITIONAL AUTHORITIES RELATING TO PENSIONS AND BOND ISSUANCE.

§8-13C-1. Findings.
The Legislature finds that:
(a) Imposing additional taxes creates an extra burden on the citizens of the state;
(b) Imposing additional taxes can be detrimental to the economy of the state;
(c) Imposing additional taxes is only proper under certain circumstances;
(d) For many municipalities with severe unfunded liabilities of the police and fire pension funds, all available sources of local revenue have been exhausted. Property taxes are at the maximum allowed by the State Constitution and local business and occupation taxes and utility taxes are at the maximum rates allowed by state law. Other fees have reached the economic maximum and are causing relocation of business outside the municipal boundaries;
(e) For many municipalities with severe unfunded police and fire pension fund liabilities, revenue from existing sources has become stagnant over the past few years with no expectation of significant future growth;
(f) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds are now close to equaling the city payrolls for police and fire protection and will rise to exceed those payrolls within a ten-year period;
(g) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds now constitute a large percentage of those municipalities' total budget and will rise to an even larger percentage of the available revenues in the next ten years. Payment and benefit levels are dictated to the municipalities by state law;
(h) As the required pension payments rise, many of the municipalities with severe unfunded police and fire pension fund liabilities will find it impossible to maintain at minimum levels necessary and proper city services including, but not limited to, police and fire protection, street maintenance and repair and sanitary services;
(i) For some of the municipalities with severe unfunded liabilities of the police and fire pension funds, the combination of the steeply rising pension obligations and the stagnant revenue sources raise the real possibility of municipal bankruptcy in the near and predictable future. If this happens, pensioners would either not receive the full benefits which they have been promised or pressure would be placed on the state to fund these programs;
(j) For a municipality that has the most severe unfunded liability in its pension funds, paying off the unfunded liability in a timely manner would cause tremendous financial hardship and the loss of many services that would otherwise be provided to the municipality's citizens;
(k) Only for a municipality that has the most severe unfunded liability in its pension funds would the imposition of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any combination of those taxes be an appropriate method of addressing the unfunded liability; and
(l) Only for a municipality that does not impose or ceases to impose a business and occupation or privilege tax would the imposition of an alternative municipal sales and service tax and an alternative municipal use tax be appropriate;
(m) Only for a municipality that has the most severe unfunded liability in its pension funds would the closure of its existing pension and relief fund plan for policemen and firemen to those newly employed and the creation of a defined contribution plan for newly employed policemen and firemen be appropriate; and
(n) Only for a municipality that has the most severe unfunded liability in its pension funds, that closes its existing pension and relief fund plan for policemen and firemen to those newly employed and that creates a defined contribution plan for newly employed policemen and firemen, would the issuance of bonds to address the unfunded liability of its existing pension and relief fund plan for policemen and firemen be appropriate.
§8-13C-9. Restriction on use of certain revenues.
(a) All proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax imposed pursuant to this article shall be used solely for one of the purpose of following purposes:
(1) Directly reducing the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds of the qualifying municipality imposing the tax; The proceeds used for this purpose shall be in addition to the minimum annual contribution required by section twenty, article twenty-two of this chapter. or
(2) Meeting the principal, interest and any reserve requirement obligations of any bonds issued pursuant to section fourteen of this article.
(b) A qualifying municipality loses its authority to impose a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax pursuant to this article after: For any qualifying municipality that chooses to apply the proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes directly to reducing the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds, the qualifying municipality loses its authority to impose those taxes after:
(1) The unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds is eliminated; or
(2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any permitted combination of these taxes to eliminate the unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds.
(c) For any qualifying municipality that chooses to apply the proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes to the principal, interest and any reserve requirement and arbitrage rebate obligations on any bonds issued pursuant to section fourteen of this article, the qualifying municipality loses its authority to impose those taxes after:
(1) The principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds issued pursuant to section fourteen of this article are met;
(2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any permitted combination of these taxes to meet the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds issued pursuant to section fourteen of this article; and
(3) After retirement of bonds issued pursuant to section fourteen of this article, any unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds is eliminated.
§8-13C-14. Authorization for closure of existing retirement plans, creation of defined contribution plans and issuance of bonds for certain qualifying municipalities.

(a) Notwithstanding any other section of code to the contrary and subject to subsection (b) of this section, any qualifying municipality, as that term is defined in section two of this article, has the following authority:
(1) To close its existing pension and relief fund plan for policemen and firemen provided in article twenty-two of this chapter for policemen and firemen hired on and after a future date to be set by the governing body of the municipality;
(2) To establish a defined contribution plan for policemen and firemen hired on and after the future date set by the governing body of the municipality to close its existing pension and relief fund plan for policemen and firemen; and
(3) To issue revenue bonds for the purpose of eliminating the unfunded actuarial accrued liability of the existing pension and relief fund plan for policemen and firemen and to issue refunding bonds issued to refund, in whole or in part, bonds issued for such purpose.
(b) The authority granted in subsection (a) of this section is subject to the following:
(1) No qualifying municipality may close an existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section unless the qualifying municipality also establishes a defined contribution plan for policemen and firemen pursuant to subdivision (2) of said subsection. No qualifying municipality may establish a defined contribution plan for policemen and firemen pursuant to said subdivision unless the qualifying municipality also closes its existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1) of said subsection. No qualifying municipality may issue bonds pursuant to subdivision (3) of said subsection unless the qualifying municipality also closes its existing pension and relief fund plan for policemen and firemen pursuant to subdivision (a) (1) of said subsection and establishes a defined contribution plan for policemen and firemen pursuant to subdivision (2) of said subsection. If a qualifying municipality elects not to issue bonds pursuant to subdivision (3) of said subsection, nothing in this section may be construed to prohibit the qualifying municipality from closing its existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1) of said subsection and establishing a defined contribution plan for policemen and firemen pursuant to subdivision (2) of said subsection;
(2) No qualifying municipality may exercise any authority provided in subsection (a) of this section unless it obtains a determination of the unfunded actuarial accrued liability of its existing pension and relief fund plans for policemen and firemen from the State Treasurer;
(3) If the qualifying municipality chooses to issues bonds pursuant to subdivision (3), subsection (a) of this section, the following applies:
(A) The proceeds of the revenue bonds shall be at least equal to the unfunded actuarial accrued liability as determined by the State Treasurer plus any reserve fund requirements and any costs, including accrued or capitalized interest, associated with issuing the bonds. All of the proceeds shall be applied to the payment of the unfunded actuarial accrued liability, the funding of reserve requirements and the payment of costs associated with the issuance of the bonds and may not be used for any other purpose; and
(B) The proceeds of any refunding bonds shall be used to refund all or any portion of the revenue bonds authorized in this section, to fund any required reserve requirements for such refunding bonds and to pay costs of issuance associated with such refunding bonds and for no other purpose;
(4) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection (a) (1) of this section, the qualifying municipality shall impose a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes at a rate projected to generate sufficient revenue to meet the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds, subject to the following:
(A) This requirement is void after the qualifying municipality loses its authority to impose those taxes pursuant to subsection (b) or (c), section nine of this article; and
(B) If the revenue generated by a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax is insufficient to meet the principal, interest, and any reserve requirement and arbitrage rebate obligations on the bonds, the qualifying municipality shall not issue the bonds;
(5) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection (a) of this section, all proceeds from the taxes shall be dedicated solely to paying the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds;
(6) If the qualifying municipality elects to close an existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section, all current and retired employees in the existing pension and relief fund plans for policemen and firemen shall remain in that plan and shall be paid all benefits of that plan in accordance with Part III, article twenty-two of this chapter;
(7) Any such revenue bonds or refunding bonds shall bear interest at not more than twelve percent per annum, payable semiannually, or at shorter intervals, and shall mature at such time or times, not exceeding thirty years, as may be determined by the ordinance authorizing the issuance of such bonds. Such bonds may be made redeemable before maturity, at the option of the municipality at not more than the par value thereof, plus a premium of not more than five percent, under such terms and conditions as may be fixed by the ordinance authorizing the issuance of the bonds. The principal and interest of the bonds may be made payable in any lawful medium. The ordinance shall determine the form of the bonds and shall set forth any registration or conversion privileges, and shall fix the denomination or denominations of such bonds, and the place or places of the payment of principal and interest thereof, which may be at any banking institution or trust company within or without the state. The bonds shall contain a statement on their face that the municipality shall not be obligated to pay the same, or the interest thereon, except from the special fund derived from revenues collected by the municipality from the imposition of a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes and which the municipality may pledge as security for such bonds. All such bonds shall be, and shall have and are hereby declared to have all the qualities and incidents of negotiable instruments, under the Uniform Commercial Code of the state. The bonds shall be executed in such manner as the governing body of the municipality may direct. The bonds shall be sold by municipality in such manner as may be determined to be for the best interest of the municipality. Any surplus of the bond proceeds over and above the cost of paying the unfunded liability, plus any amount required for reserves, capitalized interest and costs of issuance thereof or in the case of refunding bonds over and above the amount necessary to refund the existing bonds being refunded by such issue, plus any amount required for reserves, capitalized interest and costs of issuance thereof, shall be paid into the debt service fund for such bonds; and
(8) The defined contribution plan established by the municipality shall:
(A) Meet the federal qualification requirements of 26 U. S. C. §401 and related sections of the Internal Revenue Code as applicable to governmental plans;
(B) Set the amount of each employee's contribution and the amount of each employer's contribution;
(C) Require that the amount of annuity payments a retired member receives be based solely upon the balance in the member's annuity account at the date of retirement, the retirement option selected, or in the event of an annuity option being selected, the actuarial life expectancy of the member of any other factors that normally govern annuity payments;
(D) Include detailed provisions that require the prudent and safe handling of the retirement funds;
(E) Provide retirement options; and
(F) Include any other provision and authorize any policy that the qualifying municipality determines is necessary or incidental to the establishment and operation of the defined contribution plan. The other provisions may include, but are not limited to, the authorization to contract with a one or more private pension, insurance, annuity, mutual fund or other qualified company or companies to administer the day-to-day operations of the plan and to provide investments.
(c) The right of any person to a benefit provided under a defined contribution plan established by a qualifying municipality pursuant to this section shall not be subjected to execution, attachment, garnishment, the operation of bankruptcy or insolvency laws, or other process whatsoever nor shall any assignment thereof be enforceable in any court with the exception that the benefits or contributions under the plan shall be subject to "qualified domestic relations orders" as that term is defined in 26 U.S.C. §414 with respect to governmental plans.
(d) The interest earned on any bonds issued under the authority granted in this section is exempt from any tax imposed under the provisions of this code.
The bill (Eng. H. B. No. 3203), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3208, Adjusting the formula by which the Public Service Commission distributes wireless enhanced 911 fee revenues to the counties.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Chafin, and by unanimous consent, the bill was advanced to third reading with the unreported Finance amendment pending and the right for further amendments to be considered on that reading.
Eng. House Bill No. 3211, Permitting purchasers of motor fuels upon which federal tax is due to delay payment of reimbursement of the taxes to the vendor until the day before the payment is due the Internal Revenue Service.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3281, Relating to making it a crime to alter, destroy, or tamper with computer equipment containing voter registration information.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That §3-9-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 9. OFFENSES AND PENALTIES.
§3-9-1. False or fraudulent returns; tampering with, destroying or misdelivering ballots, records, etc.; forgeries; aiding, etc., in offense; penalties.

Every person named and identified in this section, who shall violate any of the provisions of the election laws as herein specified, shall be deemed guilty of a felony and, upon conviction thereof, shall be punished by imprisonment in the penitentiary a state correctional facility for not less than one nor more than ten years:
(a) Any commissioner of election or poll clerk who shall knowingly make or cause to be made, or conspire with others to make, a false return of the result of the votes cast for any candidate at any precinct in an election held pursuant to law; or
(b) Any commissioner of election receiving the ballot of a voter to be deposited in the ballot box at any election precinct, who shall put another ballot in the box instead of the one received by him; or
(c) Any commissioner of election or poll clerk, who knowingly shall count and string a ballot not taken from the ballot box, in lieu of one taken, or which should have been taken from such ballot box; or
(d) Any commissioner of a county court, whether acting as such or ex officio as a member of a board of canvassers or otherwise, clerk of a county court, or other person, who shall, except as authorized by law, abstract any ballot from any package of ballots voted, sealed or returned from any election precinct, either before or after they are filed with the clerk of the county court, or who shall in any manner change any such ballot from what it was when voted by the voter, or who shall put another ballot in such package in the place of the one so abstracted therefrom; or
(e) Any commissioner of a county court, whether acting as such commissioner or ex officio as a member of a board of canvassers, or otherwise, who shall knowingly make and enter of record, or in any way aid, counsel or advise the same to be done, or permit the same to be done without objection on his part, any false or fraudulent statement of the result of any election held within the county; or
(f) Any person who shall falsely make, or fraudulently deface, or fraudulently destroy, any certificate of nomination, or any part thereof, or file any certificate of nomination, knowing the same, or any part thereof, to be falsely made, or suppress any certificate of nomination which has been duly filed, or any part thereof; or erase, deface or change in any manner, any election record, or any ballot, poll book, tally sheet or certificate of election, deposited with either of the clerks of the county or circuit courts; or conspire with another to do any of said acts; or induce or attempt to induce any other persons to do any of said acts; or
(g) Any person who shall aid, assist, counsel or advise in the commission of any of the offenses above specified, whether or not said acts, or any of them be committed or attempted to be committed; or
(h) Any person, who, without the assent of another, shall sign the name of such other person to any certificate, affidavit, ballot, report, statement or writing, required under any provision of this chapter, with intent to mislead and deceive; or who shall use or employ any certificate, affidavit, ballot, report, statement or writing to which the name of a person has been signed without the authority of such person, knowing that such name has been so signed with intent to mislead or deceive; or
(i) Any clerk of a court, poll clerk, member of the board of ballot commissioners, commissioner of election, or messenger intrusted with the custody of the ballots, who shall open unlawfully any of the packages in which the ballots are contained, or permit any of them to be opened, or destroy any of such ballots, or permit them to be destroyed, or give, or deliver any such packages or ballots to any person not lawfully entitled to receive them, as in this chapter provided, or conspire to procure, or in any way aid, abet or connive at any robbery, loss or unlawful destruction of any such ballots or packages; or
(j) Any person not duly authorized by law who shall, during the progress of any election in this state, or after the closing of the polls and before the ballots are counted and the results ascertained, or within twelve months thereafter, open without breaking, or break open or violate, the seals or locks of any ballot box, paper, envelope or bag, in which ballots have been deposited at or after such election, or who shall obtain possession of such ballot box, paper, envelope or bag containing such ballots, and cancel, withhold or destroy such ballots, or who shall fraudulently or forcibly add to or diminish the number of ballots legally deposited therein, or who shall fraudulently make any erasure or alteration of any kind, upon any tally sheet, poll book, list of voters, or election returns, deposited therein; or
(k) Any person who knowingly, willfully and without authorization from the Secretary of State, a county clerk or municipal clerk, directly or indirectly, tampers with, deletes, alters, damages or destroys or attempts to tamper with, delete, alter, damage or destroy any computer or computer network that contains voter registration files, records or data or who knowingly introduces, directly or indirectly, a computer contaminant into any computer, computer program or computer network that contains voter registration files, records or data; or
(l) Any person who knowingly, directly or indirectly, accesses, attempts to access, or causes to be accessed any voter registration files, records or data stored on or in a computer owned by the Secretary of State, a county commission or municipality, without authorization; or
(m) Any person employed by the Secretary of State, a county commission or a municipality who knowingly, directly or indirectly, accesses, attempts to access or causes to be accessed any voter registration files, records or data stored on or in a computer in an unauthorized manner, in excess of his or her authorization or for unauthorized use or purpose.

The bill (Eng. H. B. No. 3281), as amended, was then ordered to third reading.
Eng. House Bill No. 3308, Eliminating the provision that allowed private clubs segregated on the basis of race or color to obtain a license to sell alcoholic beverages.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 3328, Changing the name of the office of emergency services and specifying additional responsibilities.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That §15-5-1, §15-5-2, §15-5-3 and §15-5-13 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.
§15-5-1. Policy and purpose.
In view of the existing and increasing possibility of the occurrence of disasters of unprecedented size and destructiveness, resulting from terrorism, enemy attack, sabotage or other hostile action, or from fire, flood, earthquakes or other natural or man-made causes and in order to insure that preparations of this state will be adequate to deal with such disasters, and generally to provide for the common defense and to protect the public peace, health and safety and to preserve the lives and property of the people of the state, it is hereby found and declared to be necessary: (1) To create a state emergency services agency the Division of Homeland Security and Emergency Management and to authorize the creation of local and regional organizations for emergency services in the political subdivisions of the state; (2) to confer upon the Governor and upon the executive heads of governing bodies of the political subdivisions of the state the emergency powers provided herein; (3) to provide for the rendering of mutual aid among the political subdivisions of the state and with other states and to cooperate with the federal government with respect to the carrying out of emergency services and homeland security functions; (4) and to establish and implement a comprehensive emergency services plan homeland security and emergency management plans to deal with such disasters. It is further declared to be the purpose of this article and the policy of the state that all emergency services homeland security and emergency management funds and functions of this state be coordinated to the maximum extent with the Secretary of the Department of Military Affairs and Public Safety and with the comparable functions of the federal government including its various departments and agencies, of other states and localities and of private agencies of every type, so that the most effective preparation and use may be made of the nation's and this state's manpower, resources and facilities for dealing with any disaster that may occur.
§15-5-2. Definitions.
As used in this article:
(a) "Emergency services" means the preparation for and the carrying out of all emergency functions, other than functions for which military forces are primarily responsible, to protect, respond and recover, to prevent, detect, deter and mitigate, to minimize and repair injury and damage resulting from disasters or other event caused by flooding, terrorism, enemy attack, sabotage or other natural or other man-made causes. These functions include, without limitation, fire-fighting services, police services, medical and health services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to civilian protection the health, safety and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions. Disaster includes the imminent threat of disaster as well as its occurrence and any power or authority exercisable on account of a disaster that may be exercised during the period when there is an imminent threat thereof;
(b) "Local organization for emergency services" means an organization created in accordance with the provisions of this article by state or local authority to perform local emergency services function;
(c) "Mobile support unit" means an organization for emergency services created in accordance with the provisions of this article by state or local authority to be dispatched by the Governor to supplement local organizations for emergency services in a stricken area;
(d) "Political subdivision" means any county or municipal corporation in this state;
(e) "Board" means the West Virginia Disaster Recovery Board created by this article;
(f) "Code" means the code of West Virginia, one thousand nine hundred thirty-one, as amended;
(g) "Community facilities" means a specific work or improvement within this state or a specific item of equipment or tangible personal property owned or operated by any political subdivision or nonprofit corporation and used within this state to provide any essential service to the general public;
(h) "Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or terrorist or man-made cause, including weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation or other public calamity requiring emergency action;
(i) "Disaster recovery activities" means activities undertaken prior to, during or following a disaster to provide, or to participate in the provision of, emergency services, temporary housing, residential housing, essential business activities and community facilities;
(j) "Emergency services" means the preparation for and the carrying out of all emergency functions to prevent, minimize and repair injury and damage resulting from a disaster, including, without limitation, fire-fighting services, police services, medical and health services, communications, evacuation of persons and property from stricken areas, welfare services, transportation, temporary restoration of public utility services, and other functions related to the health, safety and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and the carrying out of the foregoing functions;
(k) (j) "Essential business activities" means a specific work or improvement within this state or a specific item of equipment or tangible personal property used within this state by any person to provide any essential goods or service deemed by the authority to be necessary for recovery from a disaster;
(l) (k) "Person" means any individual, corporation, voluntary organization or entity, partnership, firm or other association, organization or entity organized or existing under the laws of this or any other state or country;
(m) (l) "Recovery fund" means the West Virginia Disaster Recovery Trust Fund created by this article;
(n) (m) "Residential housing" means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for residential housing, including, but not limited to, facilities for temporary housing and emergency housing, and such other nonhousing facilities as may be incidental or appurtenant thereto; and
(o) (n) "Temporary housing" means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for temporary residential shelters or housing for victims of a disaster and such other nonhousing facilities as may be incidental or appurtenant thereto; and
(o) "Secretary" means the Secretary of the West Virginia Department of Military Affairs and Public Safety.
§15-5-3. Division of Homeland Security and Emergency Management created.

There is hereby created within the office of the governor an office to be known as (a) The Office of Emergency Services, is continued as the Division of Homeland Security and Emergency Management within the Department of Military Affairs and Public Safety. All of the allied, advisory, affiliated or related entities and funds associated with the Office of Emergency Services and all its functions, personnel and property, are transferred to, incorporated in and administered as a part of the Division of Homeland Security and Emergency Management. Wherever the words "Office of Emergency Services" appear in this code, they shall mean the Division of Homeland Security and Emergency Management.
(b) A Director of the office of emergency services hereinafter called the director, Division of Homeland Security and Emergency Management shall be appointed by the Governor, in accordance with the provisions of section two-a, article seven, chapter six of this code. On and after the effective date of this article, the director of civil and defense mobilization referred to in said section two-a shall be known and designated as the director of emergency services. by and with the advice and consent of the Senate. The Governor shall consider applicants for Director who at a minimum: (1) Have at least five years managerial or strategic planning experience; (2) are knowledgeable in matters relating to public safety, homeland security, emergency management and emergency response; and (3) have, at a minimum, a federally issued secret level security clearance or have submitted to or will submit to a security clearance investigation for the purpose of obtaining, at a minimum, a federally issued secret level security clearance.
(c) The Director may employ such technical, clerical, stenographic and other personnel and, fix their compensation and may make such expenditures within the appropriation therefore to the Division or from other funds made available to him for the purpose of providing emergency homeland security and emergency management services as may be necessary to carry out the purpose of this article. Employees of the office of emergency services Division of Homeland Security and Emergency Management shall be members of the State Civil Service System and all appointments of the office, except those required by law to be exempt, shall be a part of the classified service under the Civil Service System.
(d) The Director and other personnel of the office of emergency services Division of Homeland Security and Emergency Management shall be provided with appropriate office space, furniture, equipment, supplies, stationery and printing in the same manner as provided for personnel of other state agencies.
(e) The Director, subject to the direction and control of the Governor, through the Secretary of the Department of Military Affairs and Public Safety, shall be executive head of the office of emergency services Division of Homeland Security and Emergency Management and shall be responsible to the Governor and the Secretary of the Department of Military Affairs and Public Safety for carrying out the program for emergency services homeland security and emergency management in this state. He The Director in consultation with the Secretary of the Department of Military Affairs and Public Safety shall coordinate the activities of all organizations for emergency services homeland security and emergency management within the state and maintain liaison with and cooperate with homeland security, emergency management and other emergency service and civil defense agencies and organizations of other states and of the federal government and shall have such additional authority, duties and responsibilities authorized by this article as may be prescribed by the Governor or the Secretary of the Department of Military Affairs and Public Safety.
(f) The Director shall have the power to acquire in the name of the state by purchase, lease or gift, real property and rights or easements necessary or convenient to construct thereon the necessary building or buildings for housing and emergency services homeland security and emergency management control center.
The office of emergency planning in the department of finance and administration is hereby abolished and its functions, personnel and property transferred to the office of emergency services. The department of civil and defense mobilization is hereby abolished and its functions, personnel and property transferred to the office of emergency services.
§15-5-13. Appropriations; acceptance of services, gifts, grants and loans.

(a) Each political subdivision shall have the power to make appropriations in the manner provided by law for making appropriations for the ordinary expenses of such political subdivision for the payment of expenses of its local organization for emergency services or of its proportionate share of expenses of a regional organization for emergency services, or both.
(b) Whenever the federal government or any agency or officer thereof shall offer to any authority, corporation, partnership or other entity, public or private or the state, or through the state to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services, the state, after consultation and in coordination with the Secretary and acting through the Governor, or such a political subdivision, after consultation and in coordination with the Secretary and acting with the consent of the Governor and through its executive officer or governing body, may accept such the offer. and upon such Upon acceptance, the Governor of the state or executive officer or governing body of such the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive such services, equipment, supplies, materials or funds on behalf of the state or such the political subdivision and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer.
(c) Whenever any person, firm or corporation shall offer to the state or to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services, the state, after consultation and in coordination with the Secretary and acting through the Governor, or such the political subdivision, after consultation and in coordination with the Secretary and acting through its executive officer or governing body, may accept such the offer. and upon such Upon acceptance, the Governor of the state or executive officer or governing body of such the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive such services, equipment, supplies, materials or funds on behalf of the state or such the political subdivision and subject to the terms of the offer.
(e) The Governor may require any agency, authority, corporation, partnership or other entity to furnish a report, in both written and electronic form, detailing the source and receipt of all services, equipment, supplies, materials or funds for purposes relating to homeland security or emergency services as a condition of receiving these from the state. Within ten days of the receipt of any reports required under this subsection, the Governor shall furnish copies thereof to the Legislature.
The bill (Eng. Com. Sub. for H. B. No. 3328), as amended, was then ordered to third reading.
Eng. House Bill No. 3340, Excluding certain employment-related expenses from the definition of gross income for purposes of determining child support.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3356, Powers and duties of solid waste management board.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on the Judiciary, were reported by the Clerk, considered simultaneously, and adopted:
On page two, section twenty-six, line four, by striking out the word "authority" and inserting in lieu thereof the word "authorities";
On page three, section twenty-six, line nine, by striking out the words "operates a" and inserting in lieu thereof the word "operate";
On page three, section twenty-six, line ten, by striking out the word "facility" and inserting in lieu thereof the word "facilities";
On pages three through eight, by striking out all of sections three and four;
On page eight, section nine-a, line eight, after the word "county" by inserting the words "and regional solid waste authority";
On page eight, section nine-a, lines nine and ten, by striking out the words "and regional solid waste authority that operates a commercial solid waste facility";
And,
On page two, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §22C-3-26 and §22C- 4-9a, all to read as follows:.
The bill (Eng. H. B. No. 3356), as amended, was then ordered to third reading.
Eng. House Bill No. 3361, Relating to the West Virginia Sunset Law.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Government Organization, were reported by the Clerk, considered simultaneously, and adopted:
On page three, section four, line fifteen, after the word "Board;" by inserting the words "Public Land Corporation;";
On page three, section four, line thirty, after the word "Compensation" by changing the semicolon to a period and striking out the words "and Public Land Corporation.";
On page seven, section five, line fifty-four, after the word "Board;" by inserting the words "West Virginia Prosecuting Attorneys Institute;";
On page seven, section five, lines sixty-two and sixty-three, by striking out the words "West Virginia Prosecuting Attorneys Institute;";
On page ten, section five-b, lines nineteen and twenty, by striking out the words "Board of Examiners of Psychologists;";
On page eleven, section five-b, after line thirty-eight, by inserting a new subsection, designated subsection (6), to read as follows:
(6) On the first day of July, two thousand twelve: Board of Examiners of Psychologists.;
And,
By renumbering the remaining subdivisions.
The bill (Eng. H. B. No. 3361), as amended, was then ordered to third reading.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Eng. Com. Sub. for House Bill No. 2111, Authorizing paramedics to practice in hospital emergency rooms.
Eng. Com. Sub. for House Bill No. 2371, Authorizing collaborative pharmacy practice agreements between pharmacists and physicians and specify requirements for the agreements.
Eng. House Bill No. 2885, Relating to tuberculosis testing, control, treatment and commitment.
Eng. House Bill No. 2937, Relating to the replacement of individual life insurance policies and annuity contracts.
Eng. House Bill No. 3014, Clarifying that mandated accident and sickness insurance benefits do not apply to limited coverage policies, unless expressly made applicable to such policies.
Eng. Com. Sub. for House Bill No. 3068, Authorizing private inspectors to conduct annual inspections of elevators in state-owned buildings while establishing authority for the Division of Labor to conduct over-site inspections.
Eng. House Bill No. 3094, Relating to child support and enforcement.
Eng. House Bill No. 3098, Expanding the prohibitions and criminal penalties for sexual exploitation or sexual abuse of a child by a parent, or guardian or custodian to include offenses by persons who hold a position of trust in relation to a child.
Eng. Com. Sub. for House Bill No. 3138, Relating to requiring health insurance plans to cover the cost of contraceptives.
Eng. House Bill No. 3153, Establishing the crime of railroad vandalism.
And,
Eng. House Bill No. 3360, Requiring the IS & C Director to create and maintain an information systems disaster recovery system.
The Senate proceeded to the eleventh order of business and the introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senator Facemyer.
Thereafter, at the request of Senator Sprouse, and by unanimous consent, the remarks by Senator Facemyer were ordered printed in the Appendix to the Journal.
At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 2802, Updating provisions pertaining to commercial driver's licenses to conform with federal law.
With amendments from the Committee on Transportation and Infrastructure pending;
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on April 5, 2005;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. House Bill No. 2891, Relating to the reorganization of the executive branch of state government.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Helmick, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Government Organization.
At the request of Senator Bowman, unanimous consent being granted, the bill (Eng. H. B. No. 2891) was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3002, Removing the thirty-day deadline for submitting party designations to be eligible to vote in the primary election.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. H. B. No. 3002) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3216, Describing the scope and limitations of legislative immunity.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. H. B. No. 3216) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Pending announcement of meetings of standing committees of the Senate, including a minority party caucus,
On motion of Senator Chafin, the Senate recessed until 5 p.m. today.
Upon expiration of the recess, the Senate reconvened and, without objection, returned to the third order of business.
Executive Communications

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

OFFICE OF THE GOVERNOR

CHARLESTON

April 7, 2005

Senate Executive Message No. 4
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I am respectfully withdrawing the following appointment from Senate Executive Message No. 3 dated April 4, 2005:
20.For Member, Education Commission of the States, Charles Polk, Beckley, Raleigh County, to serve at the will and pleasure of the Governor.
Thank you for correcting your records.
Sincerely,
Joe Manchin III,
Governor.
Which communication was received and referred to the Committee on Confirmations.
The Senate again 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. 145, Budget bill.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 145 (originating in the Committee on Finance)--A Bill making appropriations of public money out of the treasury in accordance with section fifty-one, article VI of the Constitution.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 145) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 65, Designating month of December, 2005, Legislators Back to School Month.
And,
House Concurrent Resolution No. 69, Recognizing the importance of the Health Sciences and Technology Academy (HSTA) and its significant contribution to African American and under represented high school students.
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Robert H. Plymale,
Chair.
Senator Unger, from the Committee on Transportation and Infrastructure
, submitted the following report, which was received:
Your Committee on
Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 75, Requesting Division of Highways name bridge crossing Guyandotte River at Allen Junction, Wyoming County, "Staff Sergeant Grover Robert Taylor Memorial Bridge".
Senate Concurrent Resolution No. 85, Requesting Division of Highways name bridge on State Route 2 crossing Buffalo Creek at Wellsburg, Brooke County, "John G. Chernenko Bridge".
Senate Concurrent Resolution No. 86, Requesting Division of Highways name bridge on Route 16 at Corrine, Wyoming County, "Paul and Roger Harsanyi Memorial Bridge".
And,
Senate Concurrent Resolution No. 88, Requesting Department of Transportation name Division of Motor Vehicles' facility in Williamson, Mingo County, "Tom C. Chafin Division of Motor Vehicles Memorial Facility".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
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. 2163, Eliminating the set-off against unemployment compensation benefits for persons receiving social security benefits.
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. 2163) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
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. 2266, Imposing a one hundred dollar per year fee for licenses allowing wine sampling events by wine retailers.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on April 6, 2005;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. House Bill No. 2450, Relating to a child's right to nurse.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Unger, from the Committee on
Transportation and Infrastructure , submitted the following report, which was received:
Your Committee on
Transportation and Infrastructure has had under consideration
Eng. House Bill No. 2853, Relating to the West Virginia Courtesy Patrol Program.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 3089, Adding a representative to the trucking advisory committee and adding routes to the coal resource transportation road system in Braxton and Webster counties.
And has amended same.
And reports the same back with the recommendation that they each do pass, as amended; but under the original double committee references first be referred to the Committee on Finance.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, Engrossed House Bill No. 2853 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on Transportation and Infrastructure pending.
At the request of Senator Helmick, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of Engrossed Committee Substitute for House Bill No. 3089 contained in the foregoing report from the Committee on Transportation and Infrastructure.
At the request of Senator Unger, unanimous consent being granted, Engrossed Committee Substitute for House Bill No. 3089 was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Eng. Com. Sub. for House Bill No. 2855, Retaining seniority for professional personnel who voluntarily terminate employment.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2855) contained in the preceding report from the Committee on Education was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2984, Discontinuing the loan program participation of teachers and nonteachers who become members of the Teachers Retirement System on or after July 1, 2005.
And has amended same.
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 (Eng. H. B. No. 2984) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Sharpe, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 3104, Relating to the payment of telecommunications charges.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
William R. Sharpe, Jr.,
Vice Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 3104) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Eng. Com. Sub. for House Bill No. 3130, Requiring local boards of health to conduct inspections of all elementary and secondary schools.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3130) contained in the preceding report from the Committee on Education was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on Education pending.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. House Bill No. 3151, Regulating dialysis technicians by the Board of Examiners for Registered Professional Nurses.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezisoso, unanimous consent being granted, the bill (Eng. H. B. No. 3151) contained in the preceding report from the Committee on Health and Human Resources was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 3236, Relating to the special reclamation tax and special tax on coal production, providing that both of these taxes apply to thin seam coal and providing that the special reclamation tax subject to the West Virginia Tax Crimes and Penalties Act and the West Virginia Tax Procedure and Administration Act.
And has amended same.
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 (Eng. H. B. No. 3236) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
House Concurrent Resolution No. 30, Recognizing the need to increase resources and make other changes essential to the elimination of racial and ethnic health disparities in West Virginia.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
House Concurrent Resolution No. 31, Recognizing the importance of increasing funding to the special five-year demonstration professional development school project.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on Finance.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2229, Providing for the temporary detention of juvenile perpetrators of domestic violence.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2229) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2444, Mandatory participation in the motor vehicle alcohol test and lock program for repeat offenders.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2444) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2878, Relating to allowing the fraud unit to investigate the forgery of insurance documents.
With amendments from the Committee on
Banking and Insurance pending;
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on April 6, 2005;
And reports the same back with the recommendation that it do pass as amended by the Committee on Banking and Insurance to which the bill was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2991, Providing criminal penalties for aiding escape and specifying items that are unlawful to deliver to or be possessed by individuals in custody or confinement.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2991) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3049, Creating a new crime of wanton endangerment involving the use of fire and imposing a criminal penalty for such crime.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3049) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3145, Providing immunity from civil damages for persons who volunteer their services at the public health departments.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3145) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3178, Relating to domestic violence and clarifying when permanent injunctions and other provisions may be granted in final divorce orders.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3178) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3212, Creating the felony offense of intimidation of and retaliation against informants who provide information to law enforcement officers, and establishing related criminal penalties.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. H. B. No. 3212) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3258, Permitting the sale of nonintoxicating beer within a certain distance from a church that consents to the sale.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler requested unanimous consent that the bill (Eng. H. B. No. 3258) contained in the preceding report from the Committee on the Judiciary be taken up for immediate consideration.
Which consent was not granted, Senator Harrison objecting.
On motion of Senator Kessler, the bill (Eng. H. B. No. 3258) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3280, Relating to modifying the review by the Public Service Commission of public convenience and necessity applications where the project has been approved by the Infrastructure and Jobs Development Council.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on April 5, 2005;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Friday, April 8, 2005, at 11 a.m.
____________